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The tricky business of fan fiction versus copyright, Part 1 of 4

The header for this and other posts contain images from both original and fan fiction/sequels by other authors. In this case, Tintin and Snowy (left) come from Rodier’s version, the Little Prince (adapted, centre) comes from the original by De Saint-Exupéry, and the Young Prince (right) comes from A.G. Roemmers’ version. All three images have been used under the terms of “fair use”: “In its most general sense, a fair use is any copying of copyrighted material done for a limited and ‘transformative’ purpose, such as to comment upon, criticize, or parody a copyrighted work.” (Rich Stim, Stanford University Libraries). The main image, of Paris, France, is by M.F. O’Brien, used with permission.
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The header for this and other posts contain images from both original and fan fiction/sequels by other authors. In this case, Tintin and Snowy (left) come from Rodier’s version, the Little Prince (adapted, centre) comes from the original by De Saint-Exupéry, and the Young Prince (right) comes from A.G. Roemmers’ version. All three images have been used under the terms of “fair use”: “In its most general sense, a fair use is any copying of copyrighted material done for a limited and ‘transformative’ purpose, such as to comment upon, criticize, or parody a copyrighted work.” (Rich Stim, Stanford University Libraries). The main photo, of Paris, France, is by M.F. O’Brien, used with permission.

The Era of the Reboot and Sequel

Whenever an author adds a new book on to a successful novel or series of novels, comparisons are inevitable and fans are not always kind – like with To Set a Watchman, Harper Lee’s final and second only novel after To Kill a Mockingbird. Comparisons can get particularly odious when another author takes over a book “franchise” or a particular novel’s subjects, characters or writing style. It takes enormous skill to write a follow-up or sequel to a successful novel or film, especially if you are not the original author. There is a very thin line between copying the original writer’s style and writing it in your own style while maintaining the “magic” or success factor of the original work.  Apart from skill, it is also about copyright. And copyright is complicated. According to Sophie Gilbert in The Atlantic;

“…the practice of writing new stories for iconic characters after their authors pass on is long-established, and is becoming increasingly popular in the era of the reboot, the remake, the franchise, and the fictional ‘universe’…The question for authors to consider in this brave new world of mimicry, both professional and otherwise, is to what extent they consider their characters to be theirs and theirs alone. For most, it isn’t something that will become an issue during their lifetime: Copyright law stipulates that books only enter the public domain 70 years after the death of the author, even if most fanfic writers aren’t limited in terms of what they can post online.”

One example of this is David Lagercrantz’s continuation of the Millennium Trilogy by Stieg Larsson. The owner of Larsson’s works and copyright after his death, his father and brother, gave Lagercrantz permission to write the sequels, and commissioned him. Lagercrantz has already written one, The Girl in the Spider’s Web, and will be publishing two more, probably in 2017 and 2019.

An example where the expiry of the copyright triggered the republication of an erstwhile “popular” work, is Adolf Hitler’s autobiography and manifesto, Mein Kampf. Following the expiry of the copyright held by the Bavarian State Government in 2015, 70 years after Hitler’s death, Mein Kampf was republished in Germany in 2016 for the first time since 1945. The Institute of Contemporary History of Munich (IfZ) produced the first annotated German reprint, now called Hitler, Mein Kampf – Eine Kritische Edition. It is now in its 6th run, having become an unlikely bestseller, and “…the IfZ said it would maintain a restrictive policy on international rights. For now, only English and French editions are planned despite interest from many countries.”

In all these cases, the original author’s legacy, the artistic “correctness” of keeping the book or its characters alive, as well as copyright on the material, were important factors in considering whether a sequel should be published.

Above: Examples of sequels and re-used or altered books, published after an author’s death and expiry of copyright. 

Three cases of fan fiction and possible copyright infringement

Over the next few weeks I’ll be discussing three cases of what seems to be copyright infringement by fans of classic books. Obviously the skill which the new authors have shown in creating their sequels also comes into it. Watch this space.

  1. The Case of the Two Alephs – Jorge Luis Borges vs. Pablo Katchadjian
  2. The Case of Tintin and Alph-Art – Moulinsart vs. Rodier
  3. The Case of The Little Prince – De Saint-Exupéry vs. Roemmers

How copyright works

Copyright prevents people re-using the materials or the concepts, or copying the contents, especially in such a way that it seems to be the same thing, not something different. The argument is that the original author retains the copyright of their original creation:

“According to the general rule of ownership of copyright-protected works, the author of a work is the work’s first owner…The author is the person who creates the work, or the first person to express the idea in a tangible form.” (Canadian Copyright Law, by Lesley Ellen Harris, John Wiley & Sons, Inc., New Jersey, USA, 2014, p. 104).

Note that copyright does not protect ideas but only the expression of those ideas, and that authors in most countries are protected automatically, without having to make statements about copyright or have the © symbol anywhere. The symbol is basically a reminder, like a red flag. Authors are protected by the minimum standards of protection set out in the Berne Convention for the Protection of Literary and Artistic Works, and the Universal Copyright Convention. (Harris, p.58). Each country then has its own additional protections. This kind of basic protection states that copyright is valid 50 years after the death of the author, known as “life-plus-50”, and the USA, Canada and countries in the European Union has “life-plus-70”.

Sometimes when Googling a topic, you might see the notice that “…in response to multiple complaints that we received under the US Digital Millennium Copyright Act, we have removed [x] results from this page.” The Digital Millennium Copyright Act (DMCA) is a United States copyright law that implements two 1996 treaties of the World Intellectual Property Organization (WIPO). It criminalizes production and dissemination of technology, devices, or services intended to circumvent measures (commonly known as digital rights management or DRM) that control access to copyrighted works. For instance, this stops people’s sneaky ways of viewing copyrighted films for free online, and so on. It also criminalizes the act of circumventing access control, whether or not there is actual infringement of copyright itself.

Ways around copyright

There are other ways and means around copyright of course, for instance – the best way to be sure of not breaking the law is simply to create writing or films from scratch yourself, and if you quote, or re-use, quote selectively and attribute the quote correctly – say where you got it from and from who. Secondly, small amounts of the original work is allowed for review or for teaching – or generally, for non-profit purposes. Derivative works are also OK, so long as they can be proved to be proper derivatives, and fan fiction is generally OK too, because it is seldom “competition” to the original work.

But if you want to re-use, parody, satirize, re-create, make a pastiche of or re-write a copyrighted work, you have to get permission from the owner of the work. (This is exactly what Weird Al Jankovic has done with his parodies of famous songs. If the owner did not give him permission to re-use the song, he did not record it. Their loss, usually.) Or you could wait 70 years after the owner is dead, by which time you might be dead yourself. This explains why there are things like Jane Austen fan sites, where people publish their own “Austen-type” novels, or continuations of Jane Austen’s novels if they want more bodice-ripping and romance. Copyright has long since expired on her works.

If in any doubt as to whether your creation is infringing on copyright, ask a lawyer. Ask before you start, not after all the work has been done.