My 2 Cents on AO3 Hosting Original Works

[labingi]

I've been fascinated by the recent discussions of whether AO3 should allow original fic to be archived. And I'm very impressed by the tone of the discussion, which seems in the main serious, intelligent, and non-dogmatic.

I'm in favor of allowing original fic for multiple reasons, many of which others have discussed eloquently. But my personal motive for wanting to post original fic is one I haven't seen much discussed: wanting to write fic that is broadly allusive. Today's copyright law is, in my opinion, insane in its rigidity. I'll give you a case in point from a story I actually really published in the old-fashioned, "professionally" acceptable and legal way. It's called "God of Lemons" and features a girl and some historical figures getting trapped in the afterlife. This story was written right around the 25th anniversary of John Lennon's death, so I wanted it to include a Lennon tribute. The way this fit was to end the story on the symbolic resonance of noting that "all you need is love." Except "All you need is love" is a line from a Beatles song, and therefore, I am not allowed to quote it without obtaining copyright permission and paying royalties. In practice, this means that, if you include this kind of quote, no publisher will look at you if you're not already famous because they don't want to do this/pay this on your behalf. I don't blame them. So I sent in my story with some half-assed line about how love is very important or something. It really undercut the power of the ending. To what purpose? The purpose of not having as strong a tribute to Lennon and the Beatles as I would have if I had violated their copyright.

So... I have spent almost all of my original writing career studiously avoiding references (and certainly quotes) from any copyrighted material, knowing that if I don't I sacrifice any realistic chance of getting conventionally published and, even if I self-published, could conceivably be hounded for copyright violation. Any story that exists within modern culture is damaged by this limitation. Imagine teenage science fiction fans who never reference Star Wars. And wouldn't Hitchhiker's Guide be lessened without the "How many roads must a man walk down? 42"? (Yes, they did have to obtain copyright permission to use that one line from Dylan.)

I am sick of it. And so I am currently working on an original story in which I am being broadly, unabashedly allusive. Quotes are flying everywhere: I have Babylon 5, Dune, an old Star Trek novel.... And you know, they improve the story. I accept that I will never be able to profit from this story. That's okay; it's a story for which I sacrifice the possibility of making money to the joy of creating free art ("free" in the sense of "liberty" not "$0"). But I'm still in dubious copyright territory, and the most reasonable defense I can think of for allowing me to circulate this story to the public is that it is a fan work and should be protected under the same protections AO3 claims for fan works in general. That makes AO3 the perfect venue for archiving it, and I think archiving such works absolutely fits their mission.

Comments

[nic]

Oh, interesting! I'm generally on the side of "keep AO3 for fannish works only", but the examples you cited are very valid of non-fannish-but-need-a-home.

Thanks for providing another POV.

[labingi]

Thanks:) I'm glad that attitude at AO3 so far seems against policing what is and isn't fandom. I suspect that will save everyone a world of problems.

here via metafandom

[firefly99.livejournal.com]

I agree. I was sort of loosely on the side of 'AO3 should stick to fanfic', but this post has made me change my mind.

Re: here via metafandom

[labingi]

Thanks! That's the nicest compliment I could possibly receive.

[katta]

This is very interesting, and a good point! I remember children's book author Pija Lindenbaum lamenting that she'd run into problems with her Kenta och barbisarna, because the protagonist was playing with a Barbie doll and that COULD NOT BE ALLOWED in the English translation. Which is ridiculous, because no one in their right mind would think the book was licenced Mattel material.

Having to avoid "all you need is love" is, of course, even more ridiculous.

At least I can be grateful that if I ever write any original fic, it'll most likely stay untranslated and I thus only have to follow my own country's slightly less insane copyright rules. But of course that doesn't mean I shouldn't support AO3's efforts to give other people the same rights.

[labingi]

I'm glad your country's copyright rules are less insane. I suspect that we'll see writing culture change a long time before the letter of the law does. Maybe by the time the law does change, we'll hardly notice. Yes, the Barbie thing is ridiculous. On a similar note, my friend camillemulan got harassed by the trademark holders of Raggedy Ann for publishing a book entitled "Raggedy Chan" (this was a limited self-publication). She had to go to a lawyer, I think, to find out that they had no grounds for telling her to cease and desist.

[eggcrack]

I was feeling conflicted about this issue before, but you convinced me to pick a side. In other words, an excellent point!

[labingi]

Thanks!

[xparrot]

(from meta-fandom) - Holy shit, I didn't realize that single lines of lyrics were verboten. It doesn't surprise me, it's just. Damn. Current copyright law is so, so messed. >.>

(Out of curiosity, asking as a hoping-to-go-pro author, if you had a char say "All you need is love" and not give any hint that it's intended to be a Beatles reference, but simply a phrase on its own - could you get away with it? Or better not to risk it?)

[labingi]

Interesting question. I guess the safe answer is "ask your lawyer." In general, I think you're fine using a common phrase that happens to be a quote if it has no bearing on the source of the quote. Otherwise, much of the English language would be copyright violation. Example: "I'll wait for you," is a line of out "With or Without You," but no one would say that you can never have a character say, "I'll wait for you."

In the specific instance of "All you need is love," I feel like hedging a little more because the words are so iconic "Beatles" that in almost any context, it might make people think of the song.

My best advice is to read individual publishers' guidelines about what they will or won't accept. I hope that helps a little!

[msilverstar]

I think this is taking copyright fear too far. IANAL, but from what I've read at EFF and the OTW and in various journals, the fair use provisions of the US copyright law clearly allows for that kind of reference. No one can own a few words, it has to be a lot more copied than that. Even a trademark can be used in text: the protection is against someone else using the same words in the same order for advertising and competition.

Honestly, go read the things that major publishers include in novels that have been vetted by lots of lawyers. No one is going to sue you for including the phrase "All you need is love".

And look at http://www.copyright.gov/help/faq/faq-protect.html "Copyright does not protect names, titles, slogans, or short phrases."

http://www.copyright.gov/fls/fl102.html

Section 107 contains a list of the various purposes for which the reproduction of a particular work may be considered fair, such as criticism, comment, news reporting, teaching, scholarship, and research. Section 107 also sets out four factors to be considered in determining whether or not a particular use is fair:

1. The purpose and character of the use, including whether such use is of commercial nature or is for nonprofit educational purposes
2. The nature of the copyrighted work
3. The amount and substantiality of the portion used in relation to the copyrighted work as a whole
4. The effect of the use upon the potential market for, or value of, the copyrighted work

The distinction between fair use and infringement may be unclear and not easily defined. There is no specific number of words, lines, or notes that may safely be taken without permission.

Acknowledging the source of the copyrighted material does not substitute for obtaining permission.

[labingi]

Thanks for the links and redaction of the law. I agree with you that a case can be made that many of these usages are not copyright violation. (And a much stronger case can be made that they shouldn't be.)

But if you're trying to publish original fiction (or even self-publish for profit), the question is less what's legal than how much hassle is your publisher (or you) willing to put up with to fight the legal battles. To use an example I mentioned in another comment, a friend got told to cease and desist from self-publishing a book titled "Raggedy Chan" because it was allegedly a violation of the trademark for Raggedy Ann. My friend finally went to a lawyer and determined that the cease and desist order was not legal. She went ahead and successfully self-published. If she'd been shopping her book to professional publishers, they probably would have passed on it rather than consult lawyers on an unknown author's behalf.