Author Topic: Annie Proulx's still pissed...  (Read 80141 times)

Offline louisev

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Re: Annie Proulx's still pissed...
« Reply #150 on: March 05, 2010, 03:25:57 pm »
The huge misunderstanding about copyright has to do with its intention and purpose.  The intention and purpose of copyright as a legal right has to do with commercial gain, and not with ownership.  The ownership of a work that is published is always limited - yeah, whether any of us like it or not, the right to the ownership of something is limited as soon as it is published, because it is sold to a publisher.  It is THAT PUBLISHER, not the author, who retains the commercial right to the work, and it can only revert under contractual terms agreed with the owner who sells it to the publisher.  At any rate, the ownership of any and all items that are published after 1978 revert to the public in an unrestricted manner - at least in North American, 70 years after the death of the author: see the following table

http://www.unc.edu/~unclng/public-d.htm

Copyright is ALWAYS limited, however, and this right to publish for gain is constrained by the Right of Fair Use, as follows:

The right of criticism and commentary
The right of parody
The right of educational use
The right of noncommercial use

Yes, non commercial use.  That means that if there is potentially NO IMPACT to the owner of the copyright by the use of the work, then it MAY be considered a fair use.  However, in most cases of fan fiction - which is by definition noncommercial use - threats by copyright owners for protection of their copyright are not tested in court due to the potentially devastating effect of a negative judgement:  $100,000 per incident if the judgement is unfavorable.  The case of "The Wind Done Gone"- in which the estate of Margaret Mitchell sued Houghton-Mufflin was resolved after an appeals court vacated an injunction against publishing it, and the parties came to an agreement for Houghton-Mifflin to make a donation to Morehouse College, an African-American institution of higher learning.  However, considering that the injunction was lifted, it indicates that Mitchell's estate was likely to have lost that lawsuit and so agreed to settle.

There is nothing in copyright case law to justify classifying fan fiction as copyright violation in its noncommercial form; only works that are not permitted by the copyright holder (not the author, please note, but the OWNER) which are published for gain are considered likely to be violations of fair use.

The purpose of copyright is not to protect authors and owners from the use of their property: it is to protect the commercial viability of their works for themselves.

At any rate, the unpermitted use of another's intellectual property is not theft: it is infringement.
“Mr. Coyote always gets me good, boy,”  Ellery said, winking.  “Almost forgot what life was like before I got me my own personal coyote.”


Offline serious crayons

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Re: Annie Proulx's still pissed...
« Reply #151 on: March 05, 2010, 04:18:03 pm »
Thanks for that explanation, Louise.

How is commercial use defined in the age of the internet? It would seem the publication and sale of works isn't the only way to make money on them. For example, what if someone posted their fan fic on their web page, and also ran google ads on the page? For that matter, doesn't BetterMost in some sense profit from publication of fan fic here because it is selling ad space?


Offline Marina

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Re: Annie Proulx's still pissed...
« Reply #152 on: March 05, 2010, 08:07:47 pm »
Yes, thanks for that info, Louise.

To me, ad space on a webpage site really isn't the same thing - it's an indirect profit if that, and the poster really has no control over that.   Selling ad space would be the policy of the website regardless, in order to keep itself in existence, and the content would have little or no impact on that, just MO.  Direct sale and profiting from another's work is something else.

As I said, I understand a writer's viewpoint - but also that many fanfic writers are just paying tribute to a great writer's work/working out feelings about it or are inspired.   It does also create buzz and continued interest, which is why some authors and copyright holders don't mind it, I believe.
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Offline Mikaela

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Re: Annie Proulx's still pissed...
« Reply #153 on: March 05, 2010, 08:24:15 pm »
It took Margaret Mitchell's foundation years to grant permission for a sequel, and I would guess the publisher paid.

Back in the day I actually made it through two thirds of the sequel, the name of which I've blessedly forgotten. It was a piece of drivel to the umpteenth degree. I have read any number of fanfics with much higher literary qualities in every sense. (NOT GWTW fics, though - I've never tried dabbling in those.) So though it doesn't have any bearing on the issue of property and intellectual rights and sale thereof, the GWTW sequel certainly does prove that legit is not always best.


In my opinion fanfic is to literature what downloading of tunes, TV episodes or films are to the music and movie industry. The big corporations are still scratching their heads and trying to harness new types of impatient and creative consumer behaviour that's taking place by means of actively using the net. What to do when consumers aren't behaving like they're supposed to, showing up to pay their dollars for a book, a CD or a DVD?

Long before I'd heard of the internet, I created the equivalents of fanfics in my head. For every truly engaging book I read, a large part of my digesting it was continuing the story, building different scenarios within that world, wondering "what if", trying to make sense of characters by fleshing out their possible backstories and futures.... That IMO is what fanfic writers are doing, only they're doing it on the net. Instead of just talking over the water cooler about a good book or film, people are talking to the world, and using their imagination in doing so, not just their "literary-analytical" skills. I think publishers need to find better and more constructive means of harnessing and encouraging this type of readership interest, praise and analysis. They should find means to benefit from it and to realize the revenue potential such "continued free marketing and interest maintenance" entail, - well at least as long as fanfic isn't actively sold for money. Antagonistic action could be counter-productive even to their possibility of truly cashing in on their own intellectual rights. And the publishers and authors and filmmakers of hugely popular works have realized that. JK Rowling, Peter Jackson - they've stoked the fannish flames and tacitly gone very far in accepting fannish behavior including fics. And the publishers and property rights holders have been sitting back and saying little, too busy counting their billions of bucks.

Offline louisev

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Re: Annie Proulx's still pissed...
« Reply #154 on: March 05, 2010, 09:24:05 pm »
You are right about Peter Jackson regarding LOTR fanfics, but not so J.K. Rowling.  In fact, Rowling was so belligerent about a tribute reference work entitled "The Harry Potter Lexicon" which was published with a claim of fair use, that she sued the publishers.  She won the action, in a finding in New York that the Lexicon used too much of Rowling's work in its reference; and she was awarded a grand total of $6,750 in statutory damages. The year she won that action she made $300 million.  Petty? You bet.

Woe be unto anyone who writes a Harry Potter fanfic.

Same with Anne Rice's works - she will sue anyone, at any time, under any circumstances, for daring to put about a fanfic about any of her works.

And Annie Proulx would also go into that category of aggressive pursuers of fanfic writers.  Her lawyers went after me and at least three authors I know of with cease and desist letters.  I dealt with it  (I don't have $100,000 to prove adequate transformative fair use, nor did I want to) by withdrawing all fanfic pages from the Web, and subsequently modified all of the stories to remove any and all references to Brokeback or its characters.  As far as I know, Anne Rice and Annie Proulx are among the top rank of aggressive pursuers of fanfic writers.

“Mr. Coyote always gets me good, boy,”  Ellery said, winking.  “Almost forgot what life was like before I got me my own personal coyote.”


Offline serious crayons

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Re: Annie Proulx's still pissed...
« Reply #155 on: March 05, 2010, 09:34:56 pm »
You are right about Peter Jackson regarding LOTR fanfics, but not so J.K. Rowling.  In fact, Rowling was so belligerent about a tribute reference work entitled "The Harry Potter Lexicon" which was published with a claim of fair use, that she sued the publishers.  She won the action, in a finding in New York that the Lexicon used too much of Rowling's work in its reference; and she was awarded a grand total of $6,750 in statutory damages. The year she won that action she made $300 million. 

Yes, that's the case I was referring to earlier, which I could recall only in vague outline. Thanks for the details, Louise!


Offline louisev

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Re: Annie Proulx's still pissed...
« Reply #156 on: March 05, 2010, 10:08:11 pm »
Yes, that's the case I was referring to earlier, which I could recall only in vague outline. Thanks for the details, Louise!



Rowling's petty punishment of a public library worker's tribute work with this grand trial which had no real monetary incentive to it but only her sense of outrage at having somebody show respect for her work and to entertain those who loved it, is one of the reasons why I will never, ever, spend a cent on anything Harry Potter related.  She does not understand the role of art in human culture.  And she might want to read up on copyright - the reason that works by authors revert to the public domain is that they become part of the shared cultural heritage of all humanity.  And fair use dictates that those who enjoy a work can participate in commentary and reference works for those who enjoy them.  She is LUCKY that she made $6.5 billion on her books, and she has no respect for the role she played in the larger culture. Fuck her.
“Mr. Coyote always gets me good, boy,”  Ellery said, winking.  “Almost forgot what life was like before I got me my own personal coyote.”


Offline Jeff Wrangler

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Re: Annie Proulx's still pissed...
« Reply #157 on: March 05, 2010, 10:28:24 pm »
Back in the day I actually made it through two thirds of the sequel, the name of which I've blessedly forgotten.

It was called Scarlett, and the author was Alexandra Ripley.

In case anyone wanted to know. ...  ::)

Quote
Long before I'd heard of the internet, I created the equivalents of fanfics in my head. For every truly engaging book I read, a large part of my digesting it was continuing the story, building different scenarios within that world, wondering "what if", trying to make sense of characters by fleshing out their possible backstories and futures.... That IMO is what fanfic writers are doing, only they're doing it on the net.

Of course, fanfic has been around since long before the Internet. I was told the idea of "slash" fanfic goes back at least as far as stories about Capt. Kirk and Mr. Spock in the Sixties.
"It is required of every man that the spirit within him should walk abroad among his fellow-men, and travel far and wide."--Charles Dickens.

Offline louisev

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Re: Annie Proulx's still pissed...
« Reply #158 on: March 05, 2010, 10:54:59 pm »
It was called Scarlett, and the author was Alexandra Ripley.

In case anyone wanted to know. ...  ::)

Of course, fanfic has been around since long before the Internet. I was told the idea of "slash" fanfic goes back at least as far as stories about Capt. Kirk and Mr. Spock in the Sixties.

they were distributed at comic book and sci fi conventions furtively in samizdat mimeograph copies.  Remember mimeo?  I still can't bring myself to read a Kirk/Spock slashfic... I'm still traumatized by reading a few Stargate SG-1 Daniel/Jack ones.  Ai yi yi!  I'm one of those purists who believes that straight should stay straight in fiction!
“Mr. Coyote always gets me good, boy,”  Ellery said, winking.  “Almost forgot what life was like before I got me my own personal coyote.”


Offline Jeff Wrangler

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Re: Annie Proulx's still pissed...
« Reply #159 on: March 05, 2010, 11:34:56 pm »
they were distributed at comic book and sci fi conventions furtively in samizdat mimeograph copies.  Remember mimeo?

Heh. I remember the "ditto" machines the teachers used when I was in elementary school.

Loved the smell of those fresh copies.  ;D
"It is required of every man that the spirit within him should walk abroad among his fellow-men, and travel far and wide."--Charles Dickens.