Tag Archives: writing

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Who owns culture? J D Salinger, J K Rowling and the line between derivation and infringement

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The bookworms among you may have caught the news last month about J D Salinger’s successful lawsuit against a writer who planned to publish an unofficial sequel to the cult classic The Catcher In The Rye. It’s a complex situation; while I’ve a certain sympathy with Salinger not wanting people messing with his creations, the ruling actually flies in the face of the US Constitution’s First Amendment, as TechDirt pointed out:

It’s difficult to see any reasonable justification for this ruling. Much of the ruling goes through the four factors of fair use, focusing a lot on why the new work is not a parody […] This misses the larger point: the work is entirely new. It’s not directly copying any actual expression. The real problem here is the idea that only “parody” can be considered fair use in these situations. There’s simply no reasonable logic to support that.

The rest of the discussion on the four factors fair use test is rather troubling. Most specifically, the judge’s analysis of the third prong, concerning “the amount of the copyrighted work” being used seems to go to great lengths to explain how the new book uses a great deal from the old book, but bases this on similarities between the way the character acts, not any actual copying of expression (other than the odd word or phrase, which would certainly seem to be minimal actual copying). Similarity (on purpose) is not copying. Stunningly, the judge even points out that the stories have similar arcs (which isn’t surprising), but to claim that because of a similar story arc there’s infringement is incredibly troubling for pretty much any writer.

Indeed – I raised a similar point in the wake of the latest plagiarism lawsuit against J K Rowling, and now it seems that the Fair Use Project and the American Library Association have filed an amicus brief expressing their concerns about the precedent being set. It’s interesting to compare the two cases, because that makes it clear that the law tends to side with the more successful or high-profile creator: Rowling’s lawyers have successfully (and quite rightfully) batted away claims from other writers that general story or character similarities make the Harry Potter series infringing works, but Salinger has prevented publication of a story that he feels infringes on his prior creations. Salinger’s case has a unique flaw (at least to my eyes) in that he has steadfastly refused to publish anything at all for quite some time. If he has no intent to write his own sequels to Catcher, how is the other writer robbing him by doing so?

Of course, there’s always the issue that cash-in works designed to exploit an established fan-base tend to be crap (and apparently reviews of the putative Catcher sequel suggest that it wasn’t much cop), but is that any reason to use the law to prevent their creation? For example, I’m pretty appalled by the travesty that Brian Herbert and Kevin J Anderson have made of Frank Herbert’s Dune universe, but I’d never suggest that they should be legally prevented from doing so.

I guess the question here is: does the publication ban showcase the law protecting Salinger’s ability to make money from his own work, or the law protecting his feelings about the work of others? Because I’m pretty sure the latter is not what the law is supposed to do, and it sets a bad precedent for any of us who aspire to make an income from our own creative output.

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Self-publish and be damned… or not?

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There’s lots of discussion going on about self-publishing for authors at the moment. Over at Apex Online, Maurice Broaddus talks about why he’s resisted the temptations of self-publication:

I know the temptation of going the self-publishing route. I have a novel that I’ve shopped around, but have been rejected. I believe in the book, I want to see it in print, but I won’t self-publish it. The rejections have taught me that the book isn’t ready. Self-publishing would mean that I would have a bad (at worse) or prematurely released (at best) novel on my resume.

[…]

Self-publishing if fine if you’re a hobbyist and just want to see your name in print. It’s fine if you have a small niche you wish to reach. It’s also fine if you have a guaranteed audience that you can get product to. I know a few writers with dedicated fan bases for whom it made perfect sense to self-publish a project. It’s your career choice. Do your research.

The prevailing wisdom is that self-publication is a mistake for an aspiring author, though attitudes are relaxing in some quarters as times change. Here’s Jeff VanderMeer laying out the situations in which he thinks it can be beneficial:

I self-published my first fiction collection, The Book of Frog, and also The Surgeon’s Tale & Other Tales (with Cat Rambo)–the context for each consistent with my views on self-publishing as it exists today. If you can’t get traction in the publishing world with a first collection despite having had stories in good publications, I think it’s okay to self-publish. If you’ve got books out from major publishers and you want to do a less commercial project, I think it’s okay to self-publish. That said, within five to ten years, self-publishing in general will probably lose its stigma altogether and we’ll have a situation closer to what you find in indie music.

Self-publishing’s image is tarnished primarily because it gets used as a short-cut to publication for writers who – to be nice about it – simply aren’t yet up to writing a decent book. The obvious defence to that accusation is that not all unpublished writers are bad writers, and that’s certainly true… but I know from my editing work that the overwhelming majority certainly are.

So, as Jeff points out, things will be come much like the indie music circuit: the barriers to participation and distribution will be much lower, but it’ll be no easier to sell your work to people if you’re just not writing what people want to read (or writing it very well). Perhaps that will raise the profile of reliable reviewers and critics? A medium operating under the economics of abundance has a greater need for aggregators and gatekeepers to filter the infinity of choices, after all.

Any of you lot read any good self-published books that don’t deserve the stigma? And are there any self-published authors who’d like to share their experiences?

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Publishing 101

The would-be writers among you might find the following two items of interest, dealing as they do with the less glamorous aspects of fiction publishing. First up, John Scalzi explains why writers in their thirties are still described as being “new”, even though they’re kind of old by comparison to musicians and actors at similar career points:

1. Writing an entire novel is something most people have to work up to. Because you know what? Writing sixty to one hundred thousand words of fiction is not something most people cannonball through, even if they assure you, with the appropriate amount of false modesty, that they’re really better at long-form fiction. Maybe they are, but they still had a long walk to get there.  I’m better at long-form and it took me until I was 28 before I could do it. Meanwhile I’d been writing short for years up to that point, in the form of reviews and columns and humor pieces and (yes) occasional attempts at short fiction that I mostly abandoned after a page or two. Lots of people in their teens and early 20s start novels; rather fewer finish them.

Elsewhere, Andrew Wheeler takes a more business-orientated look at things as he runs through the essentials of book marketing, starting with something called “channel mix”:

It’s deeply wonky, I know, but at the core of the business of selling books is knowing where and to whom you’re going to sell. A “channel” is a way to sell books, and there are more of them than you think.

It’s easy to get blindered in the book world, and to assume that the big chain stores are the only way books get to readers. It’s more true for fiction than for non-fiction, but there are still more options than you think.

[…]

If you’re an author, your publisher will have a marketer thinking about these channels (or the subset of them that publisher has an effective salesforce to reach), and — if you’re lucky — your editor will also think about this as well. But that doesn’t mean you should ignore it; the author is always the best expert on her book, so you can help by suggesting possibilities.

(Authors often have unrealistic hopes, which you should keep in mind. It’s not always the author’s fault — some authors are monomaniacs who think their book on cheesemaking in Scandinavia will be a major Oprah pick, but most are just optimistic people who think that the Society for Shadetree Management would really, really like a new middle-grade novel about Becky Balsam, Forest Ranger if they only took a look at it. So be careful about pushing your suggestions too forcefully. Make suggestions, but also listen closely to what the people at your publisher tell you.)

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JK Rowling: probably not a plagiarist

Poor old JK Rowling; whatever you may think of the Harry Potter books (I think they make passable doorstops), there’s no denying that her success has brought her into the firing line of a lot of resentful (and less successful) creatives. As reported at TechDirt, Rowling is once again being accused of plaigiarising someone else’s work in order to create Hogwarts et al.

In these trigger-happy times of copyright law, cases like this are bound to come up – though it’s telling that you you have to make it pretty big before anyone will bother suing you. But the long-term implications and precedents are important to writers and other creatives – especially in science fiction and fantasy, which thrive on what has been described as their ongoing conversational nature. In a genre where building on (or dismantling and deconstructing) the ideas of your predecessors is an integral part of the game, a few successful suits of this type could open the gates to a flood of smaller cases; it seems there’s plenty of copyright lawyers who don’t care how spurious a case is provided there’s a chance of a decent fee. Here’s TechDirt‘s Mike Masnick:

The whole thing is pretty silly, of course. The publisher is vehemently denying any copying, and it seems unlikely that any copying did actually happen. However even if you did grant the premise and say that Rowling was “inspired” by some other book, so what? Did it really change the economics of the original book? If anything, this latest claim is just a clear money grab, designed to give new attention to a long-ignored book. No one could claim with a straight face that Rowling’s work took away any value from the other book.

Masnick also links back to an incident from last year that shows that not quite everything Orson Scott Card says is reactionary bigoted claptrap (though this example has some serious sexist undertones); commenting on the Harry Potter Lexicon case, Card pointed out that Rowling’s agressive defence of her own intellectual property hasn’t done her any favours, and that the world of literature is entirely based upon the adoption, adaptation and reuse of other people’s ideas. In defending herself against these latest accusations of plagiarism, she actually weakens the arguments she used to win the Lexicon case. Which all goes to show that copyright justice frequently boils down to a game of who can afford the better legal team… so, no news there, then.

Just to be abundantly clear, here, I’m not trying to claim that copyright law works in a way it doesn’t. The point I’m trying to make is that, as a reviewer, critic and wannabe writer of fiction, I’m well aware of the fact that there are only a few handfuls of basic story plots and character archetypes from which to start writing. The art of fiction is to flesh those essentials out into something new, but equally it’s possible to deconstruct and boil down any story into a simple synopsis that can make it sound remarkably similar to any number of other stories, without there having been any hint of deliberate copying involved in their creation. If we know that as readers and writers, how can we support a legal framework that can so easily exploit these phenomena in the name of financial gain?

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Pessimistic science fiction is a cop-out

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opportunity center signIt’s nearing the submission deadline for the Shine Anthology, and editor Jetse de Vries has heard every excuse under the sun from science fiction writers who cannot or will not write optimistic near-future science fiction stories. Indeed, he’s heard enough of them to taxonomise them into seven distinct categories, to which he has posted a lengthy rebuttal on the anthology blog. [image by streamishmc]

The excuses – and he really does see them as excuses – are as follows:

  1. (Deliberately) misinterpreting the meaning of ‘optimistic SF’.
  2. Optimism is not realistic.
  3. You cannot predict the near future exactly, so you might as well not try.
  4. There is no possibility for conflict in a full-on optimistic future.
  5. I can’t do it because we live in dire times.
  6. My downbeat SF story is meant as a cautionary tale.
  7. I will not confirm to your positivist agenda: nobody tells me what to write.

If you’re at all interested in short form science fiction, you should read the whole thing, but here are some excerpts from the post:

This is a defence mechanism: most SF writers don’t want to write something that is too difficult, too risk-taking, and – dog forbid – relevant. They just want to write about something they find cool, and will throw up a barrage of excuses just to keep doing that. Those excuses are often dressed up as reasonable arguments, but more often than not what they really imply is: “Hey, I don’t want to this near future, optimistic stuff: I just want to stay in my comfort zone.” And indeed, that’s what most dystopias are: a comfort zone for unambitious writers.

[…]

There is a myth in writing circles that writers really like a challenge: tell a group of writers that they can’t do something and by golly, they will show you they can. Well, that myth is only true for simple challenges, like when Gordon Van Gelder said he didn’t like elves: immediately half the writing community brainstormed brilliant elf stories that would leave Gordon breathless.

However, now that I’m throwing out a real challenge – near future, optimistic SF – the utmost majority of the SF writing community is enormously reluctant at best, and downright dismissive at worst. Obviously, this is a challenge that doesn’t count. Well, I’ve got a message to all those writers who think they can ignore this challenge: get real, that is: look around in the real world.

[…]

There is a huge imbalance between pessimism and optimism in written SF today: the genre is overwhelmingly bleak. With Shine I’m trying to redress that lopsidedness somewhat. It’s a challenge: try your hand at this for just one short story only. But the general impression I’m getting from the SF ghetto is that ‘you’ll have to pry the pessimism from my cold, dead hands’ (exceptions acknowledged, of course). And indeed, if SF stops trying out new avenues, if it stops renewing itself, if it will not take risks, if it does not try to be relevant, then it will die.

At which point it can keep its bleakness.

The genre’s antipathy to change and new ideas is an observable phenomenon – one only need look to the backlash that Mundane SF produced for the proof – and Jetse’s dismantling of the seven excuses is lucid, logical and provocative. Essentially, all the defences boil down to one: I don’t wanna. And that’s fair enough, I guess – though it does somewhat put the lie to science fiction’s claim to be the foremost literature of the imagination.

There is one other excuse that Jetse misses off his list, though, possibly because it’s more honest than the others. As James “Big Dumb Object” Bloomer puts it:

I’ve been trying and it’s really bloody hard! […] the three months I’ve been trying to write optimistic stories are not enough, I have a feeling that it’s a life time’s work. I’m not going to give up though.

Kudos to him for that – any sort of change takes effort and will, after all.

So, all you writers among Futurismic‘s audience: do you have an excuse that’s not on Jetse’s list?