Reinventing Copyright

Would it be on-topic to ask general questions about the relationship between derivative works and copyright laws, possibly using hypothetical examples?

Fiat iustitia, et pereat mundus.

It's cool. After this article came out, I was heavily considering starting a conversation about it myself.

Honestly, when it comes to derivative works, copyright should use a variant of the sharealike license as the default. You can build on the concepts of a work no problem and make derivative works and adaptations, but it must be clearly labelled as such, and the original author can demand a small royalty payment (in the case of multiple authors, the payment is split), and while 'pirating' the original work can be something that people can still be sued for, the author author is not obligated to do so, nor are they obligated to 'defend' their copyright.

And yes, 'IP' needs to be reframed, probably as 'Intellectual Privilege' or 'Intellectual Monopoly'.

Holy crap, I wish I could have seen this article months ago! I am going to post that in as many places as I can freaking find.

And then go home and start up that Patreon I've been considering.

That’s the epitome of privilege right there, not considering armed nazis a threat to your life. - Silasw

OK, consider this hypothetical example.

A director wants to make a movie that reimagines the story of DC Comics character Wonder Woman... except that, unlike the usual reimagining of superhero characters, he intends on not limiting himself to each and every single one of the typical trappings of the character that tend to be commonly shared between her various incarnations across the many continuity reboots. Such trappings include her name, her superhero moniker (in fact, the director doesn't see why he should stay strictly within the boundaries of the superhero genre), the overall design of her costume, her set of powers and abilities (he may expand upon or discard some of them), as well closely related characters (e.g. the Amazons of Themyscira). Nor is he interested in letting Moral Guardians and the Media Watchdog force him to bowdlerize certain aspects of the character's... well, character, just so that it wouldn't offend their sensibilities (he's not going to shy away from having her unambiguously admitting to having had homosexual relations with some of her Amazon sisters in the past, for example). What is important to him is to stay true to the core essence of the character — a superhuman-yet-human paragon of female empowerment, fighting for "justice, love, peace, and sexual equality", who was born to and raised by what many consider to be one of the oldest mythological archetypes of female empowerment (whether positively or negatively protrayed) — and to allow said essence to be portrayed the way he (and probably others; it's not like the average smart director wouldn't take additional input from other people, right?) thinks it should have been, without being unduly restricted by Executive Meddling and the like.

What I'm saying is this: If someone makes a work that only takes the essence and public-domain elements of an existing work, and changes enough of the details that the result is to the original work what Expy is to the Expy's source, what does this make the new work in terms of classification?^note The closest thing that I can come up with is "spiritual reimagining", in the vein of Spiritual Successor. And does it risk infringing upon the original work's copyright?

edited 26th Sep '14 7:20:12 AM by MarqFJA

Fiat iustitia, et pereat mundus.

If he changes who she is, where she came from, what she looks like, her name, her backstory and her motivations, he's not using her anymore. He's got an OC who has a few minor elements in common with her.

...if you don’t love you’re dead, and if you do, they’ll kill you for it.

This is amazing. I'm definitely going to have to try this. Especially helpful since my preferred area is "web series," and there's not much money in there, in terms of the final product itself.

The article header says it was published on September 23, so it wouldn't have existed months ago.

Not sure if it was mentioned elsewhere, but Japan has something resembling "monetized fanfic." They're called Doujinshi. Actually not sure if they're legal, but (as I understand) it's sort of implicitly allowed.

edited 26th Sep '14 7:34:00 AM by AwSamWeston

Award-winning screenwriter. Directed some movies. Trying to earn a Creator page. I do feedback here.

That depends on what you mean by "who she is". Heck, the answer to that question regarding the original character can be a matter of Depending on the Writer. If you mean her personality, then she has more than just a little bit in common with Wonder Woman; the details may or may not differ to one degree or the other, but the essence of the character is still there.

No, that part is still more or less the same.

Again, more or less the same, barring her costume. Take note that even Wonder Woman herself had changed outfits a lot, sometimes quite drastically; here's a whole gallery of all the many iterations of the Wonder Woman uniform.

"Backstory" as in what, exactly? Again, Wonder Woman's backstory changed considerably, often because of Depending on the Writer, and not always involving continuity reboots.

I think I've just explained how she's got more than "a few minor elements in common with her".

edited 26th Sep '14 7:47:27 AM by MarqFJA

Fiat iustitia, et pereat mundus.

Here's the gist of copyright: You cannot copyright an idea or a concept or a set of instructions. You can only copyright the execution of it. That's why the whole Expy thing came about — people took a concept and used it, but executed it differently — sometimes not very differently at all, but enough that it passed legal scrutiny. And that's where copyright is fuzzy — how different does the execution have to be to be sufficiently different?

"Female Superhero who was raised in a Matriarchal Lady Land and who fights for Justice and Equality" is a concept. It's not an execution.

...if you don’t love you’re dead, and if you do, they’ll kill you for it.

Ah, OK. Thanks, Maddy. I guess the only thing left is figuring out what to call the work-level equivalent of Expy, then (which, AFAIK, is not on-topic).

EDIT: Wait, one last question. Roughly speaking, how "much" of the execution can be effectively identical to the original before one has a tangible risk of violating the original's copyright protection? Or is that an "I know it when I see it" thing, and thus dependent on how lenient is the presiding judge in a copyright case?

edited 26th Sep '14 8:57:34 AM by MarqFJA

Fiat iustitia, et pereat mundus.

It's pretty much an "I know it when I see it" thing. The court would look at ... hang on, let me see if I can find the ruling that explains whet they're looking for and what kind of standards the copying has to meet...

...if you don’t love you’re dead, and if you do, they’ll kill you for it.

Maybe [[http://en.wikipedia.org/wiki/Computer_Associates_Int._Inc._v._Altai_Inc. this]] case?

"For a successful technology, reality must take precedence over public relations, for Nature cannot be fooled." - Richard Feynman

Here's the legal definition: for infringement to have occurred, the infringing work must show "substantial similarity" to the infringed work.

The copying work has to have used non-trivial amounts of the expression of the concept from the original work, not non-trivial parts of the concept itself. It also isn't infringement if there are trivial amounts of the expression used.

edited 26th Sep '14 9:42:16 AM by Madrugada

...if you don’t love you’re dead, and if you do, they’ll kill you for it.

And of course, what counts as "trivial" for legal purposes can be quite subjective, right?

Fiat iustitia, et pereat mundus.

That article on fanfiction seems to be approaching things backwards. The author starts from a conclusion (that fanfiction authors should be allowed to make money off their works) and works from there to justify it. This passage in particular made me laugh:

No, what it would be is "Rowling killed my preferred ship?! Screw her, I'm buying the fan version where my OTP is canon!". Or the fan backlash toward something like the Star Wars prequels would result in fans making their own versions and selling them — which could absolutely damage sales. If the only place you can get Star Wars is from George Lucas, and you want some Star Wars, then you're going to have to pay George Lucas for it. If any random person off the street can make Star Wars stuff and you like the Star Wars concept but don't like George Lucas's specific take on it, then you're going to get your Star Wars fix from someone else, which means George Lucas loses the money you would have given him.

Now, you might argue that the ability to get Star Wars more suited to your particular tastes make the second scenario superior. And it might be — for you. But it certainly isn't for George Lucas, and if he knew he wouldn't be able to control the Star Wars brand, he might not have made it in the first place — meaning that we lose not only Star Wars, but also all those theoretical derivative works as well.

The point of copyright is to allow artists to make money off their work, and to make sure the money made off their work goes to them. If you write Star Wars fanfiction and sell it, you're making money off of George Lucas's work. Why should you be able to make money off his work? Yes, you did additional work in writing your fanfiction, but without his work, yours wouldn't exist. So why shouldn't he be able to decide whether or not people can build on that work he did? Why shouldn't he determine what is a reasonable cut of whatever profits come from those derivative works? Why should people be entitled to use his work in any way they want, without his permission?

If your derivative work stands on its own even without a connection to the original material it was based on, then do like Fifty Shades Of Grey did and make it an original work. If you want to write a science-fantasy Space Opera about space-wizard-swordsmen-pilot-warriors, then there's nothing stopping you. You just can't call it Star Wars and name your main character Luke Skywalker.

Regarding the idea that derivative works send money back to the original via an increase in visibility, that's certainly true — which is why smart artists don't squash any and all fanworks they become aware of. But there's a huge gap between "fanworks should be allowed" and "making money on fanworks should be allowed". If you want to argue that fanworks should count as fair use as long as they're not monetizing it, then sure, I'd agree in a heartbeat. But saying that derivative works should be allowed to be for-profit endeavours is something else entirely.

Really from Jupiter, but not an alien.

Then explain the existence of official merchandise with fan made comics in comiket. Also, there are works licensed under CC attribution or let off into public domain by the authors themselves yet still profitable.

edited 27th Sep '14 5:27:27 PM by murazrai

If the authors use a CC license or put their work into the public domain, then that's their decision — I'm certainly not saying that they shouldn't be able to do that if they want to. Nor am I saying that it would be impossible for authors to make money on their work without copyright.

Really from Jupiter, but not an alien.

Copyright and Creativity: Evidence from Italian Operas

Nobody's arguing for the abolition of copyright, but rather scaling it down and balancing it more towards the interests of the public domain and culture as whole.

I was mostly posting it because of the scientific inquiry/analysis. That copyright is good, but infinity years extensions aren't really useful.

Make that one of us, then.

Join my forum game!

So I've been conversing with a law/science student (one of his main areas of focus is copyright) in a thread on the Australian Progressives' Reddit about copyright law and what could be changed (it's actually been delightful so far), and he actually pointed out to me that, apparently, the United States is literally the only country in the world where copyright encompasses characters. In other countries, only the work itself, not the ideas, characters and concepts, are copyrightable, and in a sense, characters are 'ideas'.

That opens up a significant can of worms for creating works that can be available internationally, where the author doesn't live in the US.

edited 29th Oct '14 7:49:53 AM by Cronosonic

Causal reationships does not necessarily reflect the degree of responsibility for a work's existence, that needs to be proportionally rewarded.

There would be no Star Wars as we know it without Kurosawa, Flash Gordon, the Lumiere brothers, and the nazis, either. This doesn't mean that it was actually "their work".

Even if being inspired by an IP is a more direct example of reliance than any of the above, (so unlike these, the direct source artists should be rewarded by getting a cut), it's still a small fragment of the work that the specific work's direct writer has put into it.

You can't really say, that writing hundreds of pages of fiction with your own hands, is less important creative work than making up plot outlines, character names and costumes.

You can't really say that The League Of Extraordinary Gentlemen is "the work of" Verne or Wells, and Alan Moore has just "done additional work" on it.

You can't say that Rosencrantz And Guildenstern Are Dead is "The work of" Shakespeare, and Stoppard has just "done additional work" on it.

These two are excused by being public domain, possible to be published. But even for younger works, it is self-evident that the actual writer of the text is the one whose work the text is, and if there are any other workers who were relied on, they are just sources.

The current francise control is not merely letting all artists to make money from their respective works, and not even just giving a special reward to IP creators by giving them a cut from derivatives, but overvalues them so badly, that it hands overthe right to censor other people's art out of existence, or allow them to work as his entirely controlled employees.

This line sounds convincing in this specific format, but only as long as you use specific names. Think about this: as long as people keep paying the same money for movies, moviemakers in general will keep earning the same amount of money, each for their respective ticket sales, whether franchise control is enforced.

Franchise control is not making mone for artists in general, it's channeling money to certain artists, at the expense of others. That general "you" that you above mentioned, doesn't just refer to some random freeloader, but to artists who could be producing their own work, if they weren't forbidden to make money from it. Even if there is a point beyond which francise monopoly is more efficient for the monopolists than freedom, it's done at the expense of smaller upcoming artists, who are much more at risk of being driven out of the industry, than the billionaires who own the kind of I Ps that would be likely to be shifted from under them through mass fan interest.

Wrong. That's the means through which copyright reaches it's goal, which would be "To Promote the Progress of Science and Useful Arts".

If you just wrote a new, relatively obscure IP, fanfiction is much more likely to strenghten your fanbase and secure you a standing in the industry (and to your fanfic writers too!). Even if there are also some media empires that earn billions of dollars through their monopoly of our pop cultural icons, like Disney and Warner do, and for them, the franchise control guarantees that they get to keep making their billions, that might not be a practical way of incentivizing art. How much money does it cost to invent a character like the Batman? How much money did D.C. and then Warner earn for it? At whose expense did that money came from? From all the individual artists, who could have created their own DC derivatives independently, and make a standing from it, instead of making a rich corporation even richer.

And if the purpose would be to incentivize new I Ps, it doesn't even do that, it just incentivizes Warner and Disney to exploit their I Ps the best they can. They are not spending those billions on making more characters like Batman, but to keep using Batman as a trump card against their rivals.

edited 11th Nov '14 7:17:11 AM by Ever9

In case it hasn't been made clear enough yet, here's a rebuttal to the "copyright gives incentives for creators" argument through history.

Award-winning screenwriter. Directed some movies. Trying to earn a Creator page. I do feedback here.

OK, how much of this video is fact, how much is exaggeration, and how much is total fabrication?

Fiat iustitia, et pereat mundus.

There's a vast difference between being inspired by other artists in your own work and actually using another artist's work — their plot, their characters, their setting — as a basis for your own, and to imply otherwise is disingenuous.

Sure can! Alan Moore didn't create the characters he used to write that story. His work is made possible only by the use of other people's work. He does not deserve credit for the characters invented by other people in the story, nor (if they hadn't been public domain already) sole compensation for stories written using them.

Yep! George Lucas is the guy who made Star Wars, so why should anyone else make money off Star Wars? (I'm talking purely in terms of copyright here — obviously the actors, editors, special effects people, marketing staff, etc etc deserve compensation for their work, but they don't have a stake in copyright.)

And in that case, there's nothing stopping you from releasing your work under a permissive license to allow that. But that doesn't mean that we should rewrite copyright law so that all artists must allow it for all their works.

Okay, fair point. And I do think that copyright could use an overhaul — particularly about term lengths. But what you're suggesting is throwing the baby out with the bathwater, so to speak.

And why should Joe Schmoe Fanfic Author be able to make money off of Batman? Serious question. You're painting it in terms of "oh look at those evil greedy megacorps", but those major copyright holders aren't stopping any other artists from making art — they're just stopping other artists from making art based on their IP. If Joe is such a great author, why does he need to write Batman stuff instead of creating his own original works? Copyright law doesn't prevent Joe from creating art — it just prevents him from creating art based on someone else's IP without their permission.

edited 11th Nov '14 9:11:18 AM by NativeJovian

Really from Jupiter, but not an alien.