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Derivative Works - Phil's Rambling Rants
May 17th, 2009
10:38 pm

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Derivative Works
The current law about derivative works is that distributing work which incorporates someone else's protected material is forbidden unless permission is explicitly granted.  Exactly what constitutes distribution is somewhat shifty, and exactly what is covered by copyright, what is considered fair use, and what is incidental is even more shifty, but I don't want to get sucked into those digressions.  What I'm on about tonight can be examined by looking at fan fiction.  Our corporate masters, the publishing and media companies, would have us believe that it is their prerogative, due to their copyright, to decide if fan fiction is allowed -- and, to say that by default it's not, and that if we commit the crime of using their worlds and characters as a starting point for our own creativity, they are fully justified in smiting us with the full force of their legal system (I say their, for they have bought and paid for it -- but I digress), and that even if they show mercy now and then, it's not something we have any right to expect.

I think my main point tonight has leaked through into the tone of the above.  I've wrestled a bit before with this monster of copyright as at applies to derivative works, but I was thinking about the issue this evening and my thoughts hit a bit of a sea change.  Previously, while I have always felt that the fanficcer creating new plot but re-using someone else's world and characters or the filker retelling someone else's story in a different medium were given short shrift for the human value of their creativity, I also felt that the original copyright holders had some of the right on their own side.  I had an insight tonight that makes me feel I was giving too much credit to the orthodox position.

Simply put, to deny the reader of a novel (or viewer of a movie, etc.) the right to create derivative work is to assert that they are not allowed to think and imagine about what they have read, but only to passively accept it.  Creativity is a fundamental to personhood; I aver that to give a damn about a work is to actually hold it in the mind and play with it, not merely looking at what is actually there, but to consider what might have been there.  At the same time, to deny that reader the right to share his derivative creation is another denial of personhood.  To create something with our imagination and then to share it with another is a fundamental expression of the quality of being more than animals.  Nothing we create is completely original; it all comes from a context of experience at some point.  And if the audience doesn't have at least some of the same context, sharing our work brings us no connection.  Thus, it seems to me, we cannot reject derivative creation such as fan fiction as less valid, as creation, simply because it takes more of its underlying context from a particular copyrighted source.

Bleah.  I started this entry thinking that I had a clear point I could state quickly, but it keeps growing more heads with each swat, I'm about out of hit points, and I need my LJ client for another post.

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From:phillip2637
Date:May 18th, 2009 11:07 am (UTC)
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Most of the descriptions of copyright talk about a *work* and the *expression* of an idea as the material to be protected. If the practice supported that principle, I think I'd have little or no problem with it. How a specific character or scene fragment got to be the equivalent of a complete work baffles me.

Also, one of the justifications of copyright is supposedly to *increase* the flow of ideas and information for the benefit of the public, not to suppress that or concentrate it in a few hands. Hmmm.
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From:catalana
Date:May 18th, 2009 04:43 pm (UTC)
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Nothing we create is completely original; it all comes from a context of experience at some point. And if the audience doesn't have at least some of the same context, sharing our work brings us no connection. Thus, it seems to me, we cannot reject derivative creation such as fan fiction as less valid, as creation, simply because it takes more of its underlying context from a particular copyrighted source.

This strikes me as setting up a slippery slope. Going from the fact that everything has influences to the idea that therefore derivative creations are just as good as originals seems like a large step. There may be no easy place to draw the line, but there is still a difference between someone who has put a lot of time and energy into developing a world and someone who takes that world and writes another story in it. The second may be creating, but they are creating at a different level than the first. It's not necessarily an invalid creation or anything, but it's definitely not the same as the first.

I say this, incidentally, as someone who is vastly creative inside someone else's world and not so great at assembling my own world. I do not believe that my derivative creativity is the same as their original creativity; I'm piggy-backing off of them.

I also think that while you're right we have the freedom to create, the freedom to share those creations unfettered is more philosophically questionable. I think that original creations should likely be protected for some period of time in order to encourage people to be creative; I support limited copyright.

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