Copyright, fair use, and complications far beyond the ken of mortal man....

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Title: Copyright, fair use, and complications far beyond the ken of mortal man.... (NOTE: This essay actually has no official title. The title used here on Fanlore is the second sentence of Lackey's reply.)
Creator: Mercedes Lackey
Date(s): 2002
Medium: online
External Links: Mercedes Lackey - The Official Website: Ask Misty Archive - Writing, Archived version (scroll down to about halfway)
Click here for related articles on Fanlore.

Copyright, fair use, and complications far beyond the ken of mortal man.... is a 2002 essay by Mercedes Lackey.

It was posted to her official website under the "Ask Misty" feature. The essay is in response to a prepared question by her friend and professional acquaintance, Firebird, regarding copyright:
This answer is speaks to a number of questions that have come in on the subject of copyright. Mostly reasonable questions from well intentioned [sic] people who don't want to take liberties, but don't really understand the copyright situation. Given that intellectual property rights is a subject onto itself and the lawyers who practice in this field get the big bucks, it is understandable that Misty's loyal readers might be a bit confused on the subject. Here's another attempt to shed some light on the subject.

Some Topics Discussed

The Essay

Thought you could use another short missive from me on the subject. Copyright, fair use, and complications far beyond the ken of mortal man....

Ah, the Internet! What a wonderful tool it can be! And oh, the innumerable cans 'o'worms it's opened up for those of us who make our living entertaining people.

Let's journey back in time to a point BI (Before Internet), when all that a wordsmith had to worry about was Stuff On Paper.

Mind you, even then, there were problems. People who literally printed thousands and hundreds of thousands of copies of pirated editions of books,without the author's permission, contracts, or payment, sometimes editing to suit themselves, sometimes printing entire bogus books under the author's name. That's still a problem in third-world countries where Internet access is severely restricted---for instance, at this very moment, a bogus Harry Potter book is being sold in China! This sort of thing cost authors money---and sometimes, reputations. Charles Dickens, for instance, once reckoned that if it he'd been paid for all the pirated editions of his work that were sold in the US (yes, US publishers were some of the worst about this), he'd have been able to make a good living without having to resort to the long and grueling lecture tours through which he supported himself and his family (and which probably shortened his life). Tolkien's reputation as a fantacist [sic] was nearly undermined by an abbreviated pirate edition of Lord of the Rings, also in the US.

But in the days of BI, for the most part, fan "use" of an author's work was not a lot to fret over. Fact is, it's expensive and tedious to print out and distribute derivative fiction. A fanfic novel had to cost as much or more than a mass-market hardback, and it was printed on clumsy letter-size paper and bound (if at all) in report-covers. There was the mailing to deal with, or getting to conventions to sell it at your dealers' table. It was also a lot easier to make sure that things of---an "adult" nature, such as "slash" fiction---didn't get in the hands of 14-year-olds.

As for games, well---you could tailor whatever you wanted out of whatever worlds you cared to for paper RPGs for yourself or your friends, but printing modules meant you ran into the same problems as fanfiction.Computer games? Didn't exist, or at least, not in any form that adapted well to gaming.

So authors generally (with a few exceptions) generally gave fans the all clear to do what they wanted to. It wouldn't hurt their sales, their reputations, or cause any real legal ramifications.

The first fly in the ointment directly in our field happened to Marion Zimmer Bradley, after the wild success of MISTS OF AVALON, when a (former) fan threatened to sue her for her adaptation of an idea [1] the fan had come up with for a Lew Alton Darkover novel. The situation rapidly involved lawyers and got expensive, and in the end, no one won (except the lawyers) since MZB elected to scuttle the novel altogether, and the fan got nothing but a bad metaphorical black eye. At that point, agents and authors began looking at the concept of fanfiction with a more critical eye. Some agents elected to try and eliminate it altogether; most cautioned authors against giving permission for it. This, by the way, is why I do not, and will not, read any fiction sent to me unsolicited, nor any "story ideas."

Ah but now, 2002 AI...oh, how different things are.

Authors of fanfic no longer have those pesky printing and distribution problems---just write and post, and make sure you list your stuff with the search engines! Coding games may not be a breeze, but it's a whole lot easier and within six months or less you can have a MUD, MUSH, or online RPG going, and as big an audience as size. bandwidth, and interest permit.

OK, it's not very likely that fanfiction is going to cut into an author's sales, but now the opportunity for a lawsuit is expanded far beyond what it ever was in MZB's case---how can a writer prove she DIDN'T happen across the story online???

And as for the new opportunities to ruin a reputation---upstream in the "Ask Misty" section, you may find a question I just fielded from a youngster,asking if it was true that I had written a book with a bestiality scene in it! There was enough detail in the question to make me think that SOMEONE out there had written "that book" and had posted it online! There are already a lot of things being attributed directly to my authorship being posted online that I had nothing to do with---

There is no control over fanfiction with adult themes being restricted to age-appropriate readers. If Motley Crue can be sued by the parents of a suicidal teenager over something that was alleged to be in their songs---not the lyrics, but supposedly "masked" or "secret" messages!---it doesn't take a leap of imagination to see that parents of a youngster who find "adult-themed" Valdemar fanfic on his or her computer could decide, not to sue the author (who might be anonymous) but sue me instead (especially if some idiot decided to put MY name on it instead of his/her own). Yes, the case would be dismissed, but it would still cost time (fewer books for you) and money (belt-tightening for me).

The same holds true, only more so, for online RPGs, MUSHs, MUDs....I haven't yet heard of a single one of these things where people didn't start using it for adult purposes---and the problem is that short of getting the site blacklisted on Parental Control software, there's no kind of policing going on---the game creators I've seen don't have the time or the inclination. I'm not sure how many of my readers are under 18 (sorry, folks, but that's the legal-definition cutoff, not mine), but there's a lot of them. And oh, brother, would a Valdemar-themed place be a prime cruising-ground for a pedophile! Who would be sued, if something went horribly wrong? Who would the lawyers look for, who has money? Better believe it would be us. More time, more money, flying out the door, never to return.

I know none of this occurs to any of you when you want to do something to let you live in my creation a little longer. I know the real fans would never, ever do anything to hurt us. But these are things that a creator has to think about these days when making decisions about what she or he has created, because there are greedy people out there, with no thoughts other than to profit, profit, profit, whatever it takes. As Larry has said,"Greed kills cool things." All we're trying to do is to protect ourselves and our work so it doesn't get killed by the greed of others.


  1. ^ even though "ideas" can't be copyrighted