Fanfic or Plagiarism?

 

I was talking to Jordan Castillo Price yesterday about the rampant problem of stealing an author’s proprietary work, either on pirate sites where wholesale downloadingjordan copying 1 of  books is taking place 24/7, to outright theft of a writer’s intellectectual property. So I suggested that she post about this topic since many authors have been victims of this ongoing problem in many forms. Here’s Jordan post –

jordan-picYesterday morning, I received a disturbing email. A fanfic writer had taken my first published novella, Among the Living, changed the POV from first person to third person, changed Jacob and Vic to Arthur and Merlin, and had begun posting the story as her own work.

I then had to leave the house for six hours. And I love my iPod touch, but it sure ain’t no iPhone. I looked for hotspots to peek in on what was going on, but to no avail. I had no choice but to let the issue go on without my attention.

While I was waiting to run home and see how everything shook out, I thought a lot about the nature of creating works for public consumption: art, music, comics and fiction. What drives us to create? What do we receive in return? Does money matter? I was listening to Harvey Pekar talk and he made a big show of trying to figure out when he was going to get his check — but really? If he was in it for the money, would he have chosen comic books as his medium? And would the filmmakers of American Splendor have tapped in so poignantly to him and his everyman’s life?

It seems like there are a couple of ways to steal from an artist: take their work, or take their ideas. When ebooks go up on file sharing sites, the theft is financial. Authors do not receive royalties for those books, not unless the reader were to go back and buy a legitimate copy of said work. I’m guessing few of them do. They pat themselves on the back for making a promise to consider purchasing from a legitimate vendor in the future, maybe, if the mood strikes them and the planets are in alignment. And they tell themselves they’re “supporting” that author.

That’s the most typical way my work is stolen. The prevalence disturbs me so deeply I’ve hired some trusted associates to deal with it so I no longer have to see to it personally.

But the content theft — that was a new one for me. It felt different, somehow, to know some stranger took it in her head to change a few words of my story, post it, and bask in all the attention she was getting for her subtle characterization and great dialog.

Once someone in the community realized what she’d done, the community policed itself. And that was wonderful to see. If you’d like more grisly details, you can find themjordan amongtheliving200 on LiveJournal. (link to http://jordan-c-price.livejournal.com/74089.html)

Since I have your attention, I thought I’d break down some varying levels of artistic borrowing and stealing.

Homage – this is a subtle, or not so subtle, nod to the work that has gone before in an artist’s genre. You see a lot of it in film. The first scene in Brotherhood of the Wolf, for instance, is an homage to Jaws. You see lots of homages to Hitchcock’s classic shower scene in Psycho. An homage implies respect, and a certain camaraderie with the audience. It says, you’ve seen this, we’ve seen this, we think it’s great, and we’re trusting you to “get” it.

The most subtle of homages is almost like a secret handshake. (For instance, I’m not enough of a film buff to get that Brotherhood of the Wolf thing; it was explained to me. I was busy reading French subtitles.)

Derivative Work – when musicians take samples from existing songs, when authors write stories in existing universes such as Star Trek or Star Wars, and when fans write fan fiction, we’re all doing something called a “derivative work.”

Authors who write in franchised universes (like Star Wars) are writing derivative works with permission from the copyright owners. When they contract to do that work, they’re entering into an agreement with the copyright holder.

Fanfic writers are also creating derivative works — stories set in sandboxes other writers have created, with their characters. Much fanfic is based on media, and I wonder sometimes if media is more tolerant of this copyright infringement because most shows are created by teams of writers, directors, actors and crew. They’re accustomed to other people playing with their toys.

Single authors often are not used to seeing their characters say and do things that they haven’t directed those characters to say and do. I don’t have any data to back this up, but I notice that the fandoms where the creator is one person, one author, seem to have more legal action taken against them than the fandoms based on TV series — and I wonder if it’s because novels are deeply personal to their creators in a way that TV series are not to their collaborative crew.

Plagiarism – the representation of another artist’s work as your own; a claim of false authorship. Plagiarism is considered a separate act from copyright infringement, though both may occur at the same time.

Copyright infringement – the use of an author’s copyrighted material without his or her consent.

Authors, you’re not helpless here. You may or may not choose to litigate if someone infringes your copyright, makes derivative works without your permission, or plagiarizes your work, but the most important step is in registering your copyright. Why take this extra step if, according to US copyright law, your copyright is automatically protected from the moment you create your work? Because then the argument “but I wasn’t making money off it” can’t be used against you, since you will be able to sue for statutory damages. It’s so important, I’ll say it twice. If your literary work is registered before the infringement takes place and you opt to litigate, you may collect statutory damages rather than actual money lost.

According to Wikipedia: The basic level of damages is between $750 and $30,000 per work, at the discretion of the court.

Plaintiffs who can show willful infringement may be entitled to damages up to $150,000 per work. Defendants who can show that they were “not aware and had no reason to believe” they were infringing copyright may have the damages reduced to $200 per work.

Personally, I’m tired of needing to know this kind of stuff. I want to tell stories, and I find it frustrating that there are people on the Internet willing to say, “Yay, Jordan’s new book is out, I’ll post it to this file sharing site then go crow about it to all my friends. I’m crazy about her work!” And I’m dismayed that I even tried to pick through the circular logic of the writer who thinks it’s fine to take Among the Living — and the whole PsyCop premise — change some names and call it her own because she’s not making money. She’s violating my copyright, pure and simple.

What does give me hope is the integrity of the fanfic community, which policed itself and got her plagiarism removed.

Author

I live in Canada and I love big dogs, music, movies, reading and sports – especially baseball

30 comments

  • Jordan – I think I understand how you feel. My work gets plagiarized frequently (I am a media business writer). My company’s lawyers told me they can send “cease and desist” orders but will not sue, because even if a financial judgment is awarded, damages are rarely collected (defendants file for bankruptcy) – so they would not justify the expense.

    Early in my career I felt cheated and was pissed that my company wouldn’t back me up, but I eventually realized they were right. My time is worth way more money producing new product for them to sell than chasing lost dollars down a black hole. I had a choice between being bitter and righteous or professionally and financially successful.

    Now when I learn another media company has stolen one of my papers, I just make sure their clients know they are untrustworthy; harming the plagiarist’s professional standing does far more damage than anything I would be awarded in court. Since your plagiarist’s currency IS their reputation, that should be even truer for you 🙂

    Anyway… that is just my experience. I hope you find a resolution that works for you.

    Reply
    • I’ll bet that “cease and desist” still feels pretty good, Diane 😉

      In my original post, I separated copyright infringement from plagiarism because they’re different, even though they might occur at the same time. My bigger financial concern is copyright infringement, so for me, it will be worth it to pursue the protection of my copyright.

      The plagiarism was more of a social issue in this case, although the plagiarizer was intending to do a “fusion” with my whole PsyCop series and post that for free online (a copyright violation) so there the issues get murky again.

      But this plagiarism isn’t something I needed to call the attorneys over. The fanfic community dealt with the situation faster and more thoroughly than any outside source ever could have.

      Reply
  • Here is my final post on the subject before I move on and let it drift into cooler waters, but I don’t think I can let that last statement lie without puzzling it through for my own edification and sense of closure.

    *

    Larissa said: “I talked about this to a friend and we talked about how plagarism is cultural and time defined. Up until two centuries ago it wasn’t uncommon to copy ones work and add your own changes. There are many many different versions of manuscripts (Gawain and the Green Knight being one of them) and it was even considered an honour to be plagiarised. It is only something of the last century that it is considered bad and that there are things like copyright.”

    *

    My thoughts? All right, plagiarism used to be tolerated in historical times. So did vendetta murders and polygamy. We’ve become a more law-abiding society since then and therefore I fail to see Larissa’s point.

    *

    Larissa said: “This doesn’t mean that I agree with plagiarism or piracy. However… I do understand the need for it.”

    *

    My thoughts? Really? I’m afraid I don’t understand. Why is there a need for plagiarism or piracy?

    *

    Larissa said: “Sometimes I think authors and publishers take the whole no fanfic or copyright infringements too far. Not taking into account the content of fanfic, I would find it an honour if someone considered my work worthy of fanfic. (Not of course that it takes much for fanfic to appear)”

    *

    My thoughts? Fan fiction is, as Jordan described it above, when someone borrows a writer’s fictional world and characters and then composes something ORIGINAL with those elements. Some writers might consider it an honor to have their work paid homage to in a fan-fiction but what happened to Jordan was theft of her exact words, which the plagiarist then passed off as her own. Two very different situations.

    *

    My further thoughts? I’m sorry if I’ve misinterpreted anything Larissa has said because I don’t think it helps to try to muddy the waters here. The legitimate fan-fiction communities, whcih abhor plagiarism, would not appreciate being tarred with the same brush as the plagiarists. They’ve gone out of their way to be supportive and to show integrity regarding Jordan’s situation.

    *

    Respecting the intellectual property rights of others is both a law-abiding and moral thing to do, whether or not we are in the modern age of cyberspace, and I don’t see why this would be even remotely difficult for anyone to understand.

    Reply
    • Well…I didn’t say in this post that I agree with piracy or plagiarism. Not at all. I hate the lack of originality probably as much as you. I was just pointing out that our view of plagiarism has changed over the years.
      *
      Hahaha have we really become more law-abiding? But that is an entirely different discussion
      *
      During my studies on digital publishing we’ve talked about copyright quite a lot (focus was mostly on the Dutch copyright, though) and the outcome of a lot of discussion on copyright and the digital age was the same. Copyright as it stands now going to help protect (digital) authors. In fact most pirates will laugh at you if you start talking copyright to them.
      *
      “Respecting the intellectual property rights of others is both a law-abiding and moral thing to do, whether or not we are in the modern age of cyberspace, and I don’t see why this would be even remotely difficult for anyone to understand.”
      **
      It is. Trust me it is. There is a whole range of reasons why that is so hard. And i don’t mean any disrespect towards you, but it is people who are not willing to look different at copyright or the fact that it is not going to go away or change that makes it harder to find a viable solution.

      Reply
      • And here I said I would resist the gravitational pull of this post and stay out … 🙂 But, Larissa, your response to my previous overheated post was so gracious. It’s a hard issue for me to face: plagiarism is a hot-button in and of itself. When it happens to a friend, it’s hard for me to calm down.

        *

        You said: “And i don’t mean any disrespect towards you, but it is people who are not willing to look different at copyright or the fact that it is not going to go away or change that makes it harder to find a viable solution.”

        *

        That’s okay, Larissa, I know you mean no disrespect. And your point is well-taken. With the advent of the digital age has come a new way of looking at copyright. I may not agree with it, but it wouldn’t hurt to learn more about it. By simply pointing out that this new viewpoint exists and isn’t going away, you’ve definitely given me some food for thought. Thank you.

        Reply

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