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Thoughts on Derivative Work - Phil's Rambling Rants — LiveJournal
April 26th, 2006
06:12 pm

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Thoughts on Derivative Work
There's been discussion in my friends' journals about the person who recently wrote a story -- so called "fan fiction" -- set in the Star Wars universe, self-published it, and offered the self-published book for sale on Amazon.  Most of the discussion has amounted to incredulity and laughter that someone could be so stupid.  And frankly, in my experience it is highly unusual for someone to be so uninformed about what's going on in the world that they could actually not realize that that was not legal and was certain to attract the unfavorable attention of lawyers without also being one of the dimmer bulbs on the Christmas tree.

But it frustrates me that the discussion seems to be all about what the current law is and how anyone should know better.  Hardly anyone is saying, "Wait a minute.  Yes, this is illegal, but should it be?"

The whole area of derivative work has become completely disconnected from the actual purpose of copyright, and (like nearly everything else in the intellectual property sphere) is socially dysfunctional.  Copyright exists to encourage people to create by giving them a fair chance to make some profit from their creations.  It does not exist to allow big corporations with big legal budgets to stifle creativity with the threat of infringement lawsuits.

If there are two minor players in the creative marketplace, and one creates a work that is a minor success, and the other produces a derivative work without permission that comes to overshadow the first, there is a case that a harm has been done.  But when someone creates a work that is so successful that it is part of our common culture, that in fact creates a franchise that is aggressively inserted into the culture with a whole array of spin offs and tie in products, it is no longer necessary for our legal system to provide legal protection that disallows the public from using the culture they live in as the basis of their creative works.

The case of the naive, and yes probably stupid, fan fiction writer should not be a cautionary tale telling us to stifle our creativity and not produce derivative works.  It should, instead, be a wakeup call that we need major reform of our copyright laws, to return to the purpose of benefiting society instead of only benefiting the large corporate copyright holder.

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From:bedlamhouse
Date:April 27th, 2006 11:48 am (UTC)
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So what you're saying is that only works bad enough that they would only inspire imitators who would create better versions should be protected? Works that are so good as to resonate with the collective consciousness don't deserve protection and should become public domain upon realization by somebody that they are over a certain popularity/cultural knowledge limit?

So where's the incentive to create something that powerful? And if the creator puts many years of his life into it, why should the next person be able to profit by putting in only a fraction of the time?

This begs the questions "who decides" and "who defines 'common culture'", but those are for another day.

We have enough incentive in our popular culture to create derivative works with the names and locations changed enough to pass for new - trying to get something original done is like shooting elephants with a potato gun. The last thing we need is a change to the copyright law that rewards 100% derivation above and beyond originality.

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From:tigertoy
Date:April 27th, 2006 04:53 pm (UTC)
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I didn't express my thoughts very clearly because my thoughts aren't very clear. I'm sure I need to think about it more. But I certainly did not mean, or say, that the creators of original work should not be rewarded for their work. A work can only become a genuine part of our common culture by being widely distributed, and if it is widely distributed under sane copyright protection, the creator will be well rewarded. I do not, however, think that even the creator of a work has an inherent right to use a work as a cash cow without limit. (The distribution company that had no creative input at all but just sucks profit has much less right to copyright protection for their cash cows than the artist.)

Probably my biggest underlying problem with the level of persecution of derivative works is the assumption that a derivative work harms the original. A close copy, only making minor changes, does harm the original, if having seen the copy you have no interest in the original. But a derivative work that takes something from the original and also adds something new actually makes the original better. I fail to see, for instance, how your song "Midnight At the Well" diminishes the original or harms the estate of Jack Chalker, even if we imagine that it shows up high on the Billboard charts next year.
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