tylociraptor said: Um, shouldn’t you just respect the request of the copyright holder and not sell fanworks then…? How is it NOT okay for others to sell your works if its okay for you to violate THEIR copyright…? :/

Fair question.

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There are multiple vectors at work here.

1: Websites are owned by companies.  Company policy =/= law.  Companies in fact often have much more detailed and stringent policies on what they consider ‘infringing material’ than the government does, because they don’t want an issue to blow to the point where they get taken to court, even if they’d win.

2: Intellectual property law (which includes copyright, trademarks, and patents, among others—each of which gets treated differently) is currently in the midst of a sea change.  Since nobody in the executive or legislative branches of the US government seem inclined to take up the torch, US intellectual property law is currently being redefined mostly by the courts, one case and precedent at a time.

3: The issue hinges on the definition of ‘derivative’ vs. ‘transformative’ works.  Derivative works are considered to have no redeeming artistic value.  In layman’s terms, they’re ‘ripoffs.’  Transformative works are works that take existing objects, concepts, art, cultural artifacts, etc. and remix, reinvent, or reinterpret them in ways that are legally considered to contribute to the ongoing, churning cultural dialogue that is ‘art.’

(You may be able to spot an issue there already.  The terms ‘legal’ and ‘art’ are not exactly two words that naturally go together.)

But this is the difference between Sherlock Holmes as owned by the Conan Doyle estate vs. Elementary or House or even Reapersun’s fanart (all three widely recognized as transformative works based on the first: different time period; re-imagining of the character; different artistic medium that is used for a different purpose) compared to somebody taking Reapersun’s art, recropping it and putting it over a different background (if Reaper were the litigious sort and chose to sue, this would almost certainly be found to be derivative—there is no significant change except that you re-positioned it a bit and changed some colors to suit yourself).

Granted that if Reaper were to hypothetically take someone to court for this, it would be an almost parodically long and boring legal battle, hinging on discussions by expert-witness art historians regarding the emotional effect of re-positioning the viewer’s perspective.  Also Reaper as a freelance illustrator and sometime fan-artist would be less likely to be taken seriously than if Reaper were a Juilliard-graduated honors student toasted by NYC’s artistic elite.  Money and privilege still make the world go round.

Moving on, these examples above all share a thing in common:  in each case, the IP rights owners are the creator or someone closely associated to the creator.  (Assuming you count the studio the creator works for as an advocate and not a parasite, which is an optimistic position Alan Moore might disagree with.)

Some IP belongs to creators, or creators’ families.  Generally, this IP is not really where the issue lies.  Creators tend to have a living, symbiotic relationship with the cultural dialogue.  Whether their personal stance on their works is pro-‘go wild’ or not, they are engaged.  And furthermore, eventually they either sell the IP or they die and it doesn’t belong to them anymore.

The IP that is truly being battled over is that which is held by large corporate institutions.  Media companies, mainly.  Like most of the value of oil companies is in the oil resources they can mine and sell, the majority of the value in a media company is in the IP resources they can mine and sell.  Music, literature, movies, video games…  The companies like Disney, WB, Sony, and Square Enix collect treasure troves of creative properties in hopes that they will be able to somehow turn a dime off it.  And they often hoard these troves as jealously as any dragon, for fear that if they let somebody else play in their sandbox, the courts will decide that means their sandbox is a public park.

(This is why, as cute as it is that Darth Vader is now carting around Disney World getting into sword fights with Mulan, Disney’s acquisition of the Star Wars brand is a truly troubling move in a larger context.)

Did you know that US copyright used to last only for 14 years?  (Depending on the state you were in.)  And you had to apply specifically to get it, or else your work was public domain by default.  And you had to renew every 14 years, or you lost the copyright and anybody could do anything with it.  Later on, per some very reasonable arguments, it became ‘life of the author.’  And then ‘life of the author + some.’  And then since the 1970s, the wall of copyright vs. public domain has been frozen at 1927, with extensions tacked on as necessary to keep it there.  Do you know why?

Because Mickey Mouse was created in 1928.

Disney will do anything it has to in order to keep that wall from moving ever again, and lots of other big media companies are prepared to stand with them because they stand to lose just as much.  Superman.  Bugs Bunny.  The last published volume of the Sherlock Holmes stories (the power the Conan Doyle estate wields over Holmes due to this is debatable, but Holmes pastichers continue to defer just in case).  Winnie-the-Pooh (in the same boat as Holmes).  Charlie Chaplin’s Tramp, and that entire body of work.

But the thing is.  Look at the body of art, music and literature that predates 1927.  Myths, religion and folklore also get added into this collection (and if you think it doesn’t, then I direct you go argue with a classics and comparative lit professor, as they can smack you down more efficiently than I can).  Consider all the works that have been produced throughout history based on the works and stories that already existed, and look at how that keeps rolling.  The Bible begets Paradise Lost begets Prometheus Unbound begets a thousand works that are still being created and released to this day.  Let us not even touch on a towering figure like King Arthur or the works of Shakespeare (but really, them too.)

Now let’s say Paradise Lost had been protected by copyright.  Limited understandably by your personal awareness of the history of art and literature, try to consider how many artistic works would have been excised from our culture due to that.  Never existed.  ”No fucking with antihero Lucifer, you; that’s Milton’s character.”  I can tell you right now that I have four novels on my shelf that have been published in the last ten years that would evaporate, along with at least two series of comic books.

This is the issue that the concept of ‘transformative work’ seeks to prevent: the destruction-by-never-existing of valuable art and ideas just because the law said “Don’t mess with that.”  It is becoming increasingly important as the copyright limit continues to not move.  If IP owners want their claims to be protected indefinitely by copyright, then it stands to reason that the interpretation of ‘transformative work’ must expand and they must become more willing to permit works inspired by their work—yes, even the same character lifted from their story and placed into new stories or worlds (Sherlock Holmes pastiches!)—to not only exist, but to be marketed for sale by somebody else.

And frankly, it’s getting very damn close to the point where they have no say in that any longer.  We’ve already got Amazon Worlds (regardless of how fair the agreement is, it’s a corporate recognition that there’s something worthwhile enough to this to try to negotiate it).  And this past month, two court decisions went down that go a long way toward making that world a reality.  At least one of those decisions is getting appealed, but I’m betting that within five years, if somebody wants to publish their own Harry Potter AU without changing the names, they’ll be within their legal rights and there’ll be nothing Rowling or Bloomsbury can do to stop it.

But for the moment, you attempt such a thing at your own risk.

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