Creativity and Copyright, by Marilynn Byerly

Byerly

One of the common reasons copyright foes give for the evils of long copyright or any form of copyright is that it stifles creativity.  
Is this true?
My own feeling is that it doesn’t, particularly in fiction.
WHAT COPYRIGHT DOES AND DOESN’T COVER
Many don’t understand what copyright covers.  They think the ideas within a story are copyrighted.  They aren’t.  Anyone can write a story about angst-filled vampires and the girls who love them, and many have, but if you write and sell a vampire story where the vampires glitter, the main characters are Edward and Belle, and the plot and setting are very similar to the TWILIGHT series, you can expect a call from Stephenie Meyer’s lawyers.  
Any story or idea from other authors or sources can be used by an author as long as she makes the idea her own with her own characters, setting, and plot.  I have read a CAPTAIN BLOOD retelling as an historical romance, a Klingons-in-love STAR TREK inspired futuristic romance, and a paranormal romance that billed itself as HARRY POTTER for grownups.  None of these authors were sued for copyright infringement because they added enough of their own ideas to create something different.  
A GOOD IDEA ISN’T HARD TO FIND
Those who aren’t creative believe that it’s hard coming up with new ideas for stories.  If you ask any author, she’ll tell you that new ideas aren’t the problem; the problem is having enough time to use all those wonderful ideas to write books.  Ideas are a dime a dozen, but writing time is priceless.  
DO BOOKS OUT OF COPYRIGHT ENRICH OUR CULTURE BY INSPIRING AUTHORS?
But what of those novels and stories which have gone out of copyright?  Have they enriched the culture by spawning sequels that will be remembered forever?
I’ve read, among many others, sequels to THE SCARLET LETTER, DOCTOR JEKYL AND MR. HYDE, several of Jane Austin’s novels, MOBY DICK, and none were worthy literary successors, won awards, or remained in print more than a few years.
The only novel I could think of that has been a sequel/prequel and a literary success, as well as having more than a few months of fame, is WICKED by Gregory Maguire which is about the Wicked Witch in THE WIZARD OF OZ.  
The only true value most of these sequel books have, from a publisher and author’s perspective, is as a marketing hook so more books are sold.
If any of the sequel novels I’ve read didn’t have that instant recognition of THE SCARLET LETTER from the villain’s perspective or DR. JEKYL from the maid’s perspective, they probably wouldn’t have been published, and they certainly wouldn’t have had as many people buying them.
I know I will read any book that has Sherlock Holmes as a character even though most are poorly written and are certainly no compliment to Arthur Conan Doyle.  If that same book was about a Victorian detective, I doubt I would read it, and unless it was by an established author, few publishers would publish it.  
WHAT IS THE VALUE OF SHORTENING COPYRIGHT?
So, what is the value of shortening copyright?  None that I see except for free books, and you can read most books for free from the library.
Society almost never profits from a book out of copyright, and most of those who write the sequels create inferior books which have famous marketing hooks rather than literary value.
OTHER ARTICLES ON COPYRIGHT:
“Disney and Copyright,”   Is it really the public’s best interest for Disney’s old cartoons to go into public domain?
“A Reader’s Guide to Copyright,” A simple explanation of what copyright is and what the reader needs to know.
“The First Sale Doctrine and Ebooks,”  Is it legal to resell or share an ebook?
“The Death of Copyright,”  What would happen if copyright was abolished as some copyright opponents desire?
[Reprinted, with permission, from Marilynn Byerly’s Adventures in Writing blog.]

12 Comments on Creativity and Copyright, by Marilynn Byerly

  1. MarylandBill // May 1, 2012 at 11:04 am //

    Oh good, a story can be used as long as it doesn’t use the originals characters, settings or plot… great that leaves.. umm… maybe the basic set up.

    Also, Ms. Byerly seems to have a rather focused view of copyright. Copyright is not simply about books (though obviously that is the first thing that comes to mind when discussing copyright on a site dedicated to ebooks). There are many other ways to take a work by an author and repackage it. Yes, there may not have been many decent sequels to Sherlock Homes or the works of Jane Austen that have been written, but there have been numerous excellent adaptations done for T.V. and the movies. Lets also remember that more than one Shakespeare play was adapted for Opera and Ballet (and indeed some of these are classics in their own right).

    Also, while it might be difficult to better a great original, its sometimes possible to start with a mediocre work and rewrite it as something amazing. Shakespeare did this, so did Thomas Mallory and Chretien De Troyes with their King Arthur stories (come to think of it, Mark Twain and T.H. White did as well, though they had Mallory and Troyes to work from!).

    Mind you, I am not an advocate of eliminating copyright. It serves a useful function. I also note however that most books effectively disappear from libraries and book stores decades before their copyright expires; perhaps one in 1000 is still read by the time their copyright expires. Why not develop a mechanism that would allow derivative works to be developed (if not free copies distributed) after a period of say 10 or 15 years.

  2. MarylandBIll, this is an article from my blog which is written for writers of fiction, hence the focus.

    For a real writer, borrowing the basic set up is more than enough to get the creative pump primed, but plot points, setting, and types of characters can be borrowed with impunity. The trick is to make it your own.

    I used “Romeo and Juliet” as my template for my science fiction romance, STAR-CROSSED. Men and women were the Montagues and the Capulets on a human colony where men were harem slaves and women had the power. I even had various characters that could be equated with the various characters in the play. I did such a good job of integrating the play elements into my story that no one has ever made the connection between the two despite the title which is a major clue.

    A story that is transferred from one media to another requires a whole different set of abilities and mindset so it’s pretty dang hard not to make drastic changes. For example, most of us have read reviews of plays which have become movies where the reviewer complained that the movie failed because it remained too faithful to the source and looked like a filmed version of the play.

    Those of us who have tried to write a screenplay of our novel have discovered that most of a movie is visual and too much dialogue and exposition are screen death. Drastic changes had to be made.

    And, as I said in my article, derivative works offer nothing to society from a literary standpoint, and the works that are derivative are invariably inferior in most cases. All they do is take up a publishing space that would be better used by an original work.

    If all you want to do is riff on a published or filmed story, write fanfic where time limits and unoriginality aren’t an issue.

  3. First of all, you didn’t limit your claims to a literary standpoint. You said it was particularly true in fiction, but you didn’t say it was exclusively true in fiction.

    Second, limiting yourself to the literary world is a very myopic view of copyright. After all, as I pointed out, literary works have been transformed into excellent movies, operas, ballets, and other forms of art. All of this is covered by the copyright of the original work.

    Third, while it might be great that you can disguise Romeo and Juliet so completely that no one was able to connect your novel with the original story, but that may not always be an author’s intent. You referenced Wicked, which obviously gains much of its power from the fact that the Wicked Witch is a well known character in fiction (probably more from the movie version of the Wizard of Oz more than the book, but regardless…). The same would be true of other works that do not attempt to hide their origins.

    Finally, yes it is true that most derivative works are not worth the paper they are printed on…. but then again, that is true of the vast majority of books ever written. The point of allowing copyright to lapse is not for the 999 bad sequels to Sherlock Holmes that get written (or the 9999, or 99999), its about the one good one. One Wicked, one Once and Future King, or Connecticut Yankee in King Arthur’s Court is frankly all that it takes to justify a limited term of copyright.

  4. Bill, why are you attacking when there’s nothing to attack about? I’m a novelist who writes a blog for other fiction writers so my focus is in that direction. There is nothing wrong with that.

    My major point about copyright is that a creative person doesn’t need the crutch of other writers’ works to be creative. If anything, from my experience as a teacher working with young writers, it is more a hinderance than a help because it cripples the imagination and puts a box around a story so no boundaries are pushed.

    A truly creative person like Gregory Maguire was able to start with the Wicked Witch and then created his own backstory for her. He created his own story.

    The Arthurian novels you sited as being derivative of copyrighted material aren’t. The Arthurian stories have been part of English culture since the Medieval period, and each author has used that rich folk tradition in his own manner to make his own points.

    In the same way, we are currently seeing a veritable flood of stories being created from fairy tales. In novels, we have Mercedes Lackey writing fantasy stories about The Tradition of fairy tales as well as any number of fairy-tale-based romances. We have GRIMM and ONCE UPON A TIME on TV, and I don’t know how many major motion pictures based on SNOW WHITE and other characters.

    You are the personification of the people I’m talking about. You don’t understand what copyright covers, you aren’t creative so you don’t understand how those of us who are creative work, and you are desperately eager to limit protections in spite of knowing nothing about it.

  5. Malignant Carp // May 1, 2012 at 6:52 pm //

    Ironically, I can think of a number of Harry Potter-related copyright infringement lawsuits that were made on the basis that J.K. Rowling infringed upon another authors “ideas.” I’m perfectly aware that copyright only covers expressions of ideas, but there still exist individuals that have filed legal cases on the basis that “somebody stole my idea.” Such suits should not even be able to be filed, let alone won.

    As a writer, I often find inspiration in the works of others, be that television, film, or other books. Even song lyrics have given me ideas. Those ideas may spawn something that can be worked into something that appears entirely original or it may not.

    From my perspective, creativity would seem to be a primarily subconscious process modulated (not always to one’s benefit) by critical thinking. I am inclined to believe that my ability to come up with ideas is mostly based upon ideas and expressions of those ideas all around me as perceive them through my own unique cognitive filter.

    I won’t begin to assume whether or not MarylandBill is a writer, but I will suggest maybe we ask an important question that never seems to be asked in these often heated discussions of copyright term length: What is the value in having copyright outlive the creator of the work by nearly a century (or only half of one if you live in Canada like I do)?

    I can only think of one and that is in no way beneficial to the creator, for whom copyright was created. What use is the creator’s money to their estate? Should the creator’s children not learn to be self-sufficient, to create their own work or to work for their own money? I understand there are other issues, legal and otherwise, for which such money could be useful, but it is hardly required. That’s what life insurance is for.

    Don’t get me wrong, I’m all for getting paid for creative work, but there’s no other job on the planet I can think of that continues to pay money for years after the work has been done. I’ll probably release my own work in some form or another (public domain or creative commons), a decade or so after I first publish it. That’s just how I roll.

  6. None of the copyright lawsuits against Rowling have been won. Two of the suits were started by an obscure author who used the word “muggle” and a few mild coincidences in plot similarities in his book years before HP, and that book has been out of print for almost as long.

    Most suits claiming this kind of thing are from people hoping to get a settlement check from the other person so they can avoid the legal hassle. Rowling didn’t fall for this, and her lawyers won in both cases.

    As to copyright length, that is a totally different discussion, and one I’m not interested in getting into it right now. I will say, though, that the really long copyright is for the sake of corporations like Disney or media like Marvel Comics, not for individual authors and creators.

  7. 1. I understand that the matter of Arthur was medieval and therefore existed before copyright. It was provided as an example of how authors, real, creative, and even celebrated authors, could create derivative works of fiction that in fact were well respected in the literary community. There is no essential difference between a work that was never copyrighted and one that is out of copyright for the sake of this argument.

    2. I understand that you write a fiction blog, I also understand that you are take a very parochial view as a writer and claim that the only purpose of shorter copyrights is free books. Yet even you have admitted that there are rare exceptions where an author has created a worthy literary work based on a public domain work like Wicked (and now that I think about it, the Seven Percent Solution). You keep minimizing how important it is for artists in dance, opera and theatre to be able to tap into a robust public domain. Lets remember that one of the first great horror movies, Nosferatu was almost lost because of the copyright on Dracula (This despite the fact that there are some significant differences between the two stories, like the fact that in Stoker’s novel Dracula was not killed by sunlight).

    3. Since you mention it again, yes Wicked is Mr. Maguire’s story, but without being able to use the characters and stories of the Wizard of Oz, it would loose its power. It in fact is a classic reason why works need to enter into the public domain. Again, the hit rate may be low, but that is always the case with fiction.

    4. I love the fact that you know me well enough, without benefit of having met me, or knowing my real name, to know I am not creative. Of course I love even more the assertion that since I am not creative, I don’t understand what copyright covers and know nothing about it. Perhaps in addition to creative writing, you should have studied rhetoric. Ad hominem attacks really do nothing to support your position, especially when they are based on no actual knowledge of the person you are attacking. You haven’t actually demonstrated that I don’t understand copyrights, nor do you know whether or not I have actually created works that are protected by copyright. I am not a novelist or short story writer (unless you count the stories I make up for my son), but I have created works that are covered under copyright law and therefore I do have stake in this. Of course, since copyright is really a social contract between the author and society, as a member of society, I also have a stake.

    I want authors and other creators of copyrighted materials to have strong copyright protections while they make sense. I also however see little point in providing so much copyright protection that most books are out of print and forgotten for a century before copyright expires; especially when small presses might be interested in keeping the work in print but find the costs of tracking down the rights holder prohibitive.

  8. Bill, my view, parochial or not, is that the creator deserves to be paid for the creation and that includes everything from movie rights, game rights, etc. In most cases, those who create media from books can afford to pay for those rights if they want them.

    A few thousand dollars out of a multimillion dollar movie budget is nothing and with the exception of bestsellers like HARRY POTTER, that’s all it takes to buy the rights. Options to buy, these days, are usually free so the money doesn’t even have to be in place before a producer contacts the author.

    If you don’t understand that a literary/folklore tradition like the Arthurian stories isn’t the same as copyrighted material, you don’t understand copyright.

    If you don’t understand how little value someone else’s copyrighted material is to a creative person, you aren’t creative.

    Both were statements, not attacks.

    As to the length of copyright, as I said to M. Carp, that wasn’t what I was discussing so I won’t get into the subject with you.

  9. Binko Barnes // May 2, 2012 at 7:04 pm //

    If you don’t agree with me then you don’t understand!
    If you don’t agree with me then you aren’t creative!

    Yes, dear, those are attacks. 2Z4S

  10. I think that this statement is in error:

    “None of these authors were sued for copyright infringement because they added enough of their own ideas to create something different.”

    As you correctly stated, an idea is not copyrightable. To which I would add,” the only thing that can be copyrighted is the ‘unique expression of an idea’.”

    Thus, adding ideas is not the key. The key is uniquely expressing an idea. For example, there are only so many plot ideas known to writers. There are lots of reference books that list them in various ways (e.g.Plotto). These plots are used over and over again but creative writers find unique ways to do so uniquely.

    The difficult challenge here is coming up with good tests for uniqueness. Oftentimes this is so hard that courts have to be petitioned to resolve the matter.

  11. Michelle Downing // May 26, 2012 at 8:08 pm //

    You seem to be basing at least half this house of cards on the idea that derivative works are somehow sub par work only amateurs or hacks would ever engage in. In your world, it seems, we’d all be better off if those who consumed fiction stayed consumers rather than critics and participants. If this was not what you were going for, can you please explain yourself better?

    Meyer and Rowling both are authors in support of derivative works aka fan fiction. (Well, Rowling up to a point. Commercial publication being that point.) Roddenberry cited fan works as one of the reason Star Trek stayed a viable commercial product in between 1969 and 1977. Those authors did not sue, in part, because appreciated the advertising and viability fan works added to the original article, no matter how lasting or ephemeral. Using them to prop up your argument is laughable.

    Citing “Wicked” is also questionable. Baum’s publisher, upon his death, gave the franchise over to at least three other authors to build upon the world of Oz before McGuire showed up. These books still enjoy a following and are considered “canon.” You not knowing about them doesn’t change things.

    If you want to get into the legality of these things, google, “The Wind Done Gone + legal controversy.” Not everyone has a sense of humor, or history for that matter.

    What tends to kill books is not the public domain or lack of interest. It’s lack of publicity. When a book falls out of the public eye, the author has to add “advertising agent” to his or her list of job titles, and most authors to not enjoy that kind of time. Even if they did, they now have to play “mother may I,” with a publisher who owns the material and fears loss, so they won’t give up the material, but then they don’t want to put in the effort of promoting older material until there is an identified audience. If the audience doesn’t know about it though, that audience can’t get built and ’round we go.

    This is a major reason geek culture encourages infringement. I’d like my 15-year-old niece to see Max Headroom, for example. Getting legal copies up until recently has not been possible. So, my choices were 1) bootleg it – which, ethically, I shouldn’t do or 2) pray there was enough interested fans still out there to lean on whoever had the rights this week (Yes, as companies buy and sell, that shell game gets interesting.) and then hope this company would bother with a limited audience. In this case, the creators of the show were passionate enough about Max and had the to organize fans and make it happen…In theory. I’m still waiting on my promised DVDs.

    It’s not about the profit motive when a piece of art finally hits the public domain. It’s about seeing how many fans are left to rebuild the audience for seeing the thing. This is why a public domain of 100+ years in some cases is ludicrous. If the audience is still around as more than a cult classic grouping, then it’s likely to be part of the public’s everyday consciousness by then. If the cult classic group is there, they have to take the place of a now likely long dead author in promoting this stuff. If the audience is quashed then…wow, what a waste.

  12. Michelle, if all you have to prove your case is fan fiction, I’m afraid your house of cards doesn’t even exist. First, fan fiction is around because it isn’t for sale, and its existence does nothing to improve its original source except for keeping some fans happy. Most fanfic is very poorly written, as well.

    Even FITY SHADES OF GRAY which started out as TWILIGHT fanfic and is selling millions of copies right now is poorly written stylistically and friends who read BDSM erotica tell me that it isn’t even that sexy.

    Writers whose fans write fanfic from their books go out of their way NOT to read it since Marian Zimmer Bradley was sued by one of her “fans” for copyright infringement when a minor element in one of her fanfic stories just happened to be used by MZB herself in one of her novels.

    The primary value of fanfic, from a writer’s point of view, is that it is a good training ground for learning how to write with a fandom that is more than happy to tell the writer where she has gone wrong and what she needs to improve.

    If you’d like to learn more about fanfic and copyright, I suggest this article:

    http://mbyerly.blogspot.com/2008/03/fanfic-and-copyright.html

    Most published fiction based on classics out of copyright is literary fiction written by MBAs from major college programs so it’s not written by literary hacks. I’d call these writers clever opportunists because they’ve upped their chance of being published by using a classic which is a great marketing tool.

    Beyond my opinion of their lesser value and I’ve read dozens of them over the years, none of these books are even in print anymore which says a great deal about their value as literature and as popular reading.

    WICKED is based on Baum’s first OZ book, and the Wicked Witch of the West who is the main character in WICKED makes no other appearances in any other Baum book so I stand by my reference to this book as one of the few examples of a good, successful, and long-lived book which came from a classic.

    I’m very familiar with THE WIND DONE GONE, and I kept up with the court case. There’s a very thin line between parody/social satire and copyright theft, and it’s one of those cases which was so close to that line that it had to be settled in court whether it was a parody of GONE WITH THE WIND or blatant theft. Since it was more social satire than theft, the writer and publisher of THE WIND DONE GONE won that case.

    And, yes, marketing is a major problem because few published books get enough to get the attention of readers when thousands of books a year are published, and other media is sucking away more readers every day.

    That’s one reason these derivative works are published. They have a built-in marketing tool hook. A book with Sherlock Holmes as the main character will make more sales than a book about a Victorian detective will, even if the Victorian detective novel is much better written.

    Taking a book out of copyright so that others can make money using its built-in audience as a marketing tool isn’t a good thing for literature or for readers so shorter copyright has no real value to anyone but the mercenary few.

    Regarding MAX HEADROOM which was a great show, entertainment is a luxury, not a right, so copyright theft has no legal justification when you can’t find it legally otherwise. You may find an illegal copy and show it to your niece, but it’s legally wrong. Period. If you do that, don’t make excuses, just acknowledge that you choose to be in the wrong.

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