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 downloading 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 –
Yesterday 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 them 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.