pseudohistorian: Everybody’s Got a Special Kind of Story

pseudohistorian (

pseudohistorian) wrote,
@ 2008-01-21 01:16:00

Entry tags:

Everybody’s Got a Special Kind of Story
I've been meaning to post my thoughts on the Organization for Transformative Works ever since first hearing about it at jack_pride's delightful Christmas shindig, and then doing an embarrassing amount of my own research over the holidays.

Whenever that comes, it'll be a very long and (in all likelihood) very legalistic entry--which may bore some or all of you to tears.

In the meantime, though, I emailed Julie Hilden, one of the FindLaw columnists I read regularly, suggesting that she might want to write about the OTW in a future column, since the issues surrounding it (free speech, copyright and fair use, etc.) seem right up her alley.

Much to my surprise, she actually took my suggestion, as you can see by her latest column: "The Organization for Transformative Works and Its Bid to Protect Fan Fiction: Are Its Proposed Changes to Copyright Law, Creating Immunity for Suits Against FanFic, a Good Idea?"

Feel free to take a look, if you're actually interested in such issues, and stay tuned for my own take on the matter...

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boogieshoes
2008-01-21 06:20 pm UTC (link)

glarg.

(the following is not written as an official anything, much less official spokesperson of OTW.)

granted, OTW may be setting the wrong precedents for where they want to go, but truly, the idea behind fanfiction communities is that no one gets paid for fanfic, or other fan-works. what a number of fans would like to do is protect the distribution of fan-works *provided no money is made*. the no money part is important - no one wants to actually rip off the original creators, and if money *is* made, that also moves the work from 'fair use' to 'in competition with the original'. at least as i understand it.

Ms. Hilden's column has some other interesting thoughts in it, as well. it is my understanding that literary midlist authors actually don't make as much as $20k a year - $5k is more like it, if they're lucky. indeed, nearly every sf/f author i've met has been either a part of a 2-income household, or has a day job. and even should the author in question be smashingly popular, it's entirely unlikely that they'll generate fanfic - fanfic is usually generated for film, tv series, and bands, not books. outside of Harry Potter, which is a complete data outlier, i don't think i've seen a single litfandom which could possibly be popular enough that royalty revenues would generate $20k *extra* income for an author.

even given all that, how does one propose to generate revenue from fanworks? fanfic fandom has an interest in remaining free - asking for money negates that. if an author tells fanauthors that they can write fanfic, but only if they give $100/fic, the end result is going to be a complete underground. no fanauthor is going to give the original author money if they can't count on revenue of their own from the fic itself - and they can't. there's no way that they possibly can. so the fanfic won't stop - but it'll go underground, at best, circulated by snail mail and private email, once again.

anyway, enough rambling.

-bs, hoping she sin't taking up too much of your time.

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pseudohistorian
2008-01-22 12:23 pm UTC (link)

granted, OTW may be setting the wrong precedents for where they want to go, but truly, the idea behind fanfiction communities is that no one gets paid for fanfic, or other fan-works.

While that may be true culturally, there really isn't any difference under current American case law. More to the point, the only specific US Supreme Court case currently mentioned in the OTW's FAQ is one in which a commercial use was also found to be a fair one.

I plan to go into this more in my (promised) later post, but mentioning only that case gives the impression to outsiders familiar with the case that you're defending commercial fanfic as legitimate. I think this is (at least part of) the reason for Hilden's focus on royalties, something I wasn't expecting--she would infer from the citing of that precedent (which she also mentions in her column) that commercial uses are included in the OTW's goals.

Judging from your own posts, you also seem to have issues with some aspects of the OTW's current phrasing, so you can see why this might be cause for concern.

it is my understanding that literary midlist authors actually don't make as much as $20k a year - $5k is more like it, if they're lucky.

I imagine Hilden was drawing those figures from her own experiences as a novelist--and she clearly has a day job. ;)

and even should the author in question be smashingly popular, it's entirely unlikely that they'll generate fanfic - fanfic is usually generated for film, tv series, and bands, not books.

Although Hilden's language tends to suggest books as the initial medium, she acknowledges media fandom from the outset, so we should assume she's thinking of an expansive definition of "author" here. The royalty scheme she imagines could be applied to the company that makes a TV series, for example, which would then distribute that royalty to the individual writers of that series. (After all, this is already what happens in the opposite direction with writers' royalties, regardless of the medium.)

anyway, enough rambling.

-bs, hoping she isn't taking up too much of your time.

Not at all! Thanks for commenting! :)

Incidentally, do you mind if I ask how you found your way here? I'm not quite sure how you would've come across my journal...

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	kilraaj 2008-01-22 08:12 pm UTC (link)
	Not the previous commentor, so I can't say for sure, but they might've found it through metafandom--that's how I found this entry. :) (Reply to this)(Parent)(Thread)

	pseudohistorian 2008-01-23 08:00 am UTC (link)
	You know, I thought it might've been metafandom to begin with, but when I first looked there, I wasn't linked in the main posts--not realising (or taking the time to look), of course, that I'd already been linked in the comments. Thank you for commenting...and thanks to everyone for the clarification. ;) (Reply to this)(Parent)

	thelastgoodname 2008-01-22 08:43 pm UTC (link)
	Incidentally, do you mind if I ask how you found your way here? I'm not quite sure how you would've come across my journal... You got metafandom'd. But I watch fandom_lawyers, and I imagine other people do as well. I'm very glad you asked a non-fandom-associated lawyer for her thoughts, and I'm still processing her response. (Reply to this)(Parent)(Thread)

pseudohistorian
2008-01-23 09:03 am UTC (link)

I'm very glad you asked a non-fandom-associated lawyer for her thoughts, and I'm still processing her response.

I felt it was important to try and get a legal opinion from someone who was qualified and interested in this general area of the law, but who didn't have any personal stake in the matter, before trying to formulate my own response to it.

It's gratifying to see that others are also interested in that sort of outside perspective. :)

I'm still processing, too--Hilden took the subject in a surprising direction (for me, anyway), especially when it came to the concept of royalties, so I'm not sure exactly what I (or others) will think of her take on things.

I do hope you'll stick around for my later post, whenever that comes...

(Reply to this)(Parent)(Thread)

thelastgoodname
2008-01-24 03:40 am UTC (link)

The royalties thing is really interesting, and not something I would have ever thought of. I don't think it's something a lot of fans think of, either, when it comes to books. Movies are different, maybe, or TV shows, but I'm still not sure how many fans would really be willing to send off their $20 to write in a fandom. (And legally, I don't know how royalties set effectively at $0 would work, either.)

I found a few articles by an economist working on IP stuff, and he claims that the primary method of gaining profit from intellectual property is by "using imperfections of the market to obtain profit from being the creator of knowledge but without using monopoly rights," for instance, by selling complementary goods, which is even more interesting to me. (Like encyclopedias of the universe, I guess, or maybe toys?)

(I ended up posting a huge response sort of inspired by her essay.)

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pseudohistorian
2008-01-24 11:29 am UTC (link)

Movies are different, maybe, or TV shows, but I'm still not sure how many fans would really be willing to send off their $20 to write in a fandom.

Hilden seemed to be trying to offer a solution that, if it worked, would give everyone some of what they wanted--fan fiction writers could still write their stories, while authors would be compensated for the creation of these derivative works based on their original work.

How economically feasible this would be--that is to say, how much the fan fiction "market" would bear having such a royalty scheme imposed upon it--is a different question. The few initial reactions I've seen seem to be sceptical.

(And legally, I don't know how royalties set effectively at $0 would work, either.)

I think taking that phrase out of context might be causing a bit of confusion. Hilden says that "the OTW has bypassed the more moderate solution of a low, fixed, statutorily-mandated royalty rate for fan fiction that effectively sets that rate at zero." The emphasis is mine, to highlight that there are two different models mentioned in that sentence, with Hilden's concern being that the latter model prevents both compensation and injunction as possible solutions for an author.

...the primary method of gaining profit from intellectual property is by "using imperfections of the market to obtain profit from being the creator of knowledge but without using monopoly rights," for instance, by selling complementary goods, which is even more interesting to me.

The extent to which that applies to copyright holders and derivative works of fiction, I think, stems from the consequences of being "the creator of knowledge," i.e. the arbiter of canon. To use a concrete example, it's the difference between the Harry Potter Lexicon and the encyclopedia that J. K. Rowling is (reportedly) planning to compile and release. Anyone who reads the books can know what's in them--there is no "monopoly" on that knowledge--while only Rowling can know things that are "true" (in this case, meaning "canonical") but not in those books.

I'll have a closer look at your response post when I have the chance...in the meantime, though, thanks for the link back! :)

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