Fanfic and pastiche continue to cause copyright quarrels

Chris Walters has posted an interesting and provocative post over at Booksprung in which he investigates ways that publishing fanfic could be made “legal”. In particular, he envisions a two-step process in which the body of a derivative work is published with placeholders instead of character names. For instance, a Harry Potter fanfic could have every reference to Harry’s name replaced with BOYWIZARD, every reference to Hogwart’s replaced with MAGICSCHOOL, and so on, until there are no actual derivative names within the story.

Then when the story is purchased, a program on the buyer’s computer goes through and uses a third-party-produced template to search and replace every placeholder with the actual name, then produces an e-book file out of it.

A wholly formed and unauthorized Harry Potter novel would clearly be a violation of U.S. copyright law, but the process is decentralized so that neither the author of the new work nor the template website is responsible for the final creation of the infringing work. In fact, other templates are available that would turn the story into a brand new work with original characters and places, or that would let a reader personalize it with friends and local places. If you’re feeling perverse, you can apply a Vampire Chronicles template and giggle at Lestat, Louis and Claudia as mystery solving young wizards vampires.

I’m not entirely sure this kind of “fanfic Mad Libs” would squeak by under the letter of copyright law, but it’s an interesting idea. But, Walters writes, the idea itself is not actually the real point so much as a thought experiment to point out that there are as-yet-undiscovered ways in which technology can work around copyright restrictions he and others see as overly restrictive.

I’m against the current implementation of copyright law for cultural reasons, because I think it’s reached a point where it’s become detrimental to our shared heritage. There are millions of humans who will be born, grow up, produce new creative works on the shoulders of past artists, and die, all while “Gone with the Wind” remains under copyright and locked out of the public domain.* In 2007 a filmmaker can create an original work that incorporates 80-year-old public domain blues recordings, then be unable to sell her film because of licensing issues for the underlying compositions. Other songs disappear entirely because copyright forbids distribution, even though the rights holders abandon those works and fail to properly preserve them. TV shows and movies don’t use the Happy Birthday song because of a (disputed) copyright claim on it, so a living artifact of our present culture regularly fails to be accurately represented or preserved in other works. And right now, a fanfic sequel to “The Catcher in the Rye” (set 60 years later but using the same character) can’t be published in the U.S. because J. D. Salinger successfully sued to prevent it.

Over on the Guardian book blog, David Barnett takes a more subdued look at professionally-published prequels or sequels to established books—most of which are in the public domain. It also mentions the controversial Catcher in the Rye sequel, which will be published elsewhere in the world but not within the US or Canada, and points out there have been a remarkable number of derivative works based on H.G. Wells’s The Time Machine. He also talks about the James Bond literary franchise, which has been handed off to new writers several times.

In bringing up a sequel to a novel by deceased author Trevanian, which he found managed to capture everything that made the original novel great, Barnett suggests that perhaps it might be worth giving sequels by other writers a chance.

Of course, not everyone has been enthusiastic about the idea. "I don’t know whether to call them vampires or cannibals…let them roll their own," said Nero Wolfe novelist Rex Stout of people who continue others’ series after their death. (Ironically, someone else did write Nero Wolfe novels after Stout’s death, and they were universally panned by fans of the series.)

But as many fanfic writers point out, the works that they “continue” are stories that inspired and made a great impression on them, and putting your own spin on an established story is a practice that has been hardwired into our psyches since well before ancient mythology provided the earliest recorded examples of literary pastiche.