This post is specifically about interacting with copyright in the U.S., but the ideas could probably be extrapolated to other countries.
I just read a very humble article by an author who got in legal trouble for using a copyrighted photograph on her blog without permission. Beyond the details of her own case, she goes on to talk about things like screenshots from movies, about Tumblr and Pinterest, and about just how much rampant Internet activity is flagrantly violating copyright law.
I don’t know the details of the case the author got in trouble for — I might come down on the side of the photographer on that one (morally and logically, I mean; clearly he was in the right legally), because people cribbing someone else’s work for their blogs with no attribution does the original creator little good at all, and I think people should be recognized and compensated for their work. But there are a whole lot of other categories the blogger talks about that make me highly uncomfortable in their illegality, speaking as someone online engaged in media and culture.
For instance, I am not a lawyer, but my understanding is that this blogger is absolutely right when she says screenshots posted and reblogged on Tumblr or celebrity photos thumbtacked on Pinterest are, in fact, violations of copyright that the posters could easily get sued for. The animated GIFs so popular in Goodreads reviews, the ironic LOL cat-esque screen grabs from the latest superhero movies, the fan-made trailers on YouTube: all against the law. In author communities I’ve seen it considered common knowledge that a single song lyric quoted in a novel will bring the RIAA legal teams down on the poor hapless author, whether or not the singer or band is attributed. Nobody’s taken fanfiction to court yet, but it could certainly happen.
I dislike living in that world.
I dislike living in a world in which a creator can be forced into a legal snarl when he does a parody mashup of Buffy and Twilight. I dislike living in a world in which a kid’s life can be ruined for downloading a few songs. I dislike living in a world in which a Marvel fan on Tumblr has to choose between “they probably won’t sue me for this” and disengaging, removing something from her life that gives her great joy and only helps the movie franchise she’s celebrating. I dislike living in a world in which celebrations of media by the fans of that media are under the Sword of Damocles, and the rights owners can any time decide to cut that thread.
Copyright is meant to protect both creators and society; it was historically an inducement for creators to share and engage with others as much as it was a protection for them. In modern times it has swelled into a monstrous behemoth designed to stymie creativity as much as it encourages it. The fact that certain types of common engagement by fans that actually help a franchise are actually illegal — and are not made legal by the people owning the rights — is at the heart of what I see as both the legal and cultural problems with copyright.
There are quite a few more liberal-minded authors these days who say they don’t mind fanfiction, or who turn a blind eye to piracy as something that is not a big deal and might even be helpful. I applaud these authors — but the fact remains that their fans are still breaking the law. Personally, I didn’t want to just say these things are okay, to assure any fans I was lucky enough to get that I wouldn’t sue them while still keeping the legal right to do so in my pocket. Not when I had the power to do otherwise.
And thanks to Creative Commons, I do have that power. I can declare that I am aligning the legal rights on my book with exactly the world I want to live in. For any fans I might have, I can remove the Sword of Damocles from above their heads.
Would I prefer it if people bought my book instead of pirating? Well, yes, of course! I would definitely prefer people buy it; the more I earn off the series, the more time I’ll be able to spend writing it, not to mention that I do want to be compensated for my work. But do I think I need to retain the right to sue someone for pirating my work, especially when I believe that piracy might gain me a new fan? Do I think I need the power to C&D fanfiction or fan art when those people are just celebrating my characters and giving me free advertisement? In short, why on earth would I need to keep that Sword of Damocles up there, if I say my personal philosophy is that I never intend to use it?
The answer is: I don’t. I’ve taken it down, and I wish other creators would, too. I wish movie and television studios would explicitly allow a lot of the variants of noncommercial fan activity that help build their fandoms, I wish authors with no objection to fanfiction would give the public a legal release, I wish more creators wouldn’t feel frightened of releasing under Creative Commons . . . More than anything, I wish we had broader legal protections of fair use, but absent that, I want the culture to make that decision independently even if the legal framework won’t.
So that’s what I’m doing, as a creator: on my own work, I’m decriminalizing the things I don’t think should be crimes.
I’m building the world I want to live in.
Disclaimer: I am not a lawyer. Everything mentioned in this post as regards U.S. copyright law is my own understanding of the law as far as I know, but I am not an expert and may be incorrect.
- And note that “fair use” is, AFAIK, an affirmative defense: in other words, it doesn’t keep you from getting sued in the first place.↵
- I’m immensely grateful to Creative Commons for this, by the way. In the absence of the organization, I would not be able to hire a lawyer to draft my own licenses to protect me the way I wanted while still ensuring I could release the rights I desired. The existence of Creative Commons is nontrivial, and it does amazing things for culture.↵
It should come as no surprise to people who know me that I’m a huge fan of Creative Commons. In fact, one of the primary reasons I’m self-publishing is so that I can publish under a Creative Commons license instead of under traditional copyright. Specifically, I’m going to publish under a CC-BY-NC-SA license, which means:
- People can pirate my book all they want, as long as (1) they’re not making money, and (2) they leave my name on it.
- People are free to create fan fiction and other fan works on my writing, as long as they credit my book and license their own work the same way.
- No one else is allowed to make money off my work except me (unless they make a separate deal with me).
In fact, I am so convinced that piracy will be good for my sales that I will probably try to seed piracy of my book myself (well, if I can figure out how to do that; I’ve never tried to make pirated copies of anything available before! But it can’t be too hard, right?). Since I’ll be enabling the piracy, it’ll be sort of like . . . stealth pirating on my part.
In other words, I will be a Ninja Pirate.
(Yes, this entire post was a poor attempt to set up that punchline. I’m going to be over here in this other corner of the Internet now.)
You may have heard of successful self-published author Hugh Howey, who’s been in writing news recently for both his strident self-publishing evangelism and a recent infamous blog post in which he used both graphically misogynistic descriptions and belittling language toward autistic people (after which he posted an equally offensive apology; both the original post and original apology have since been taken down). Neither of these things is what I want to talk about today; I mention them because it would be disingenuous not to admit that I’m coming into this with my opinions colored: my perception of Mr. Howey is that he’s an unthinkingly impulsive man at best and possibly someone who revels in causing cultural chaos.
I recently learned that Mr. Howey is blithely encouraging his fans not only to write fanfiction on his series, but demanding that if they do, they sell it. He hasn’t consulted with a lawyer about this—in fact, he jokes about how his lawyer is probably going to “have a fit” about it, ha ha HA.
What’s key here, for me, is that he’s quite strident when declaring this from his soapbox, but he’s spouting it all off without putting any licensing structure in place to make it legal.
Independent of my other opinions of Mr. Howey, I think this is a terrible idea for his own interests, his fans’ interests, and for the interests of the greater fan community. I would generally assume well-intentioned ignorance went into his cavalier declarations here, but taken with what else I’ve seen of him, I can’t help but feel suspicious that at least part of his motive is to wink, kick the hornets’ nest, and then see what happens next.
Here’s the thing. Under current IP law, you can’t just toss your rights up in the air and expect everything will shake out okay.
And this isn’t just about him. If this results in him making his copyright less defensible, or in someone writing and selling fanfiction in his world that he’s not comfortable with, I could care less—he invited it. If this causes him problems with Random House, whom he’s now contracted with for the print versions of his book, or with the people who have optioned his work as a film, then that’s between them.
But if I were a fan writer, I would be staying away from writing in his universe with a ten-meter pole. Why? Because saying, “It’s all good, guys! Sell all the stuff you set in my universe!” is not the same thing as licensing his work so that people can legally do so.
I mentioned in my first post that I started this “blog” thing because I wrote a novel, and I want people to read that novel. Part of the reason I feel an online presence is necessary for this is that I’ve decided to self-publish, and will therefore need good avenues to publicize my books. (I do intend to make the content here worth reading—in fact, I’m hoping people will check out my fiction because they DO like the blog content on its own—but I’d probably be too lazy to keep it up without an ulterior motive.)
Despite the stigma, self-publishing is a choice I’m making without trying to find a traditional publisher first. Why? Four reasons: