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.