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George R. R. Martin is wrong about Lovecraft [May. 8th, 2010|12:24 am]
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In some tilt against the windmill of fan fiction, George R. R. Martin makes the false claim that [H.P. Lovecraft] let so many others play in his sandbox, he essentially lost control of his own creations...[and] Those copyrights are ultimately all that separates an [Edgar Rice Burroughs] from a HPL.

Martin is wrong about many other facts in that post—copyrights do not need to be defended to be maintained, that's trademark—but he is gloriously wrong about Lovecraft. Indeed, he is so gloriously wrong that I must once again recycle my favorite publishing joke.





Q. Who knows less about publishing than a midlist author?

A. A best-selling author!






Leaving aside the "issue" of fan fiction in general, Martin's most egregious errors deal with Lovecraft. I'm sure other people will flense Martin about the tangled mess of his various claims, but I'll step up for the old man. Martin's tubthumping is bad enough without grabbing Lovecraft's corpse by the ankles, giving it a shake and going, "Boogah boogah! Every time you write a Harry Potter fan fiction, God starves a racist to death!" (If only!) Martin's errors are three:

a. Lovecraft did not "lose control" of his copyrights because he allowed other writers to make reference to characters in his stories.

b. Lovecraft did not die in poverty because of this loss of copyrights.

c. If anything, the unclear provenance of Lovecraft's copyrights after his death (when they would have done him little good anyway) is what kept Lovecraft's work in print and vital to this day.


First, the issue of Lovecraft's copyrights is complicated—the single best bit of research on the topic is Chris Karr's The Black Seas of Copyright. This isn't just my opinion by the way; when I was researching Lovecraft's copyrights several years ago, everyone I talked to including such figures as Robert Weinberg directed me to this essay. It is as definitive as it gets.

It's also too complex to do much more than summarize, but here are the key bits—a number of Lovecraft copyrights, particularly those for stories first published in Weird Tales, were owned by the magazine itself. This sort of rights assignment was not unusual during this era. For other tales, Lovecraft had assigned R.H. Barlow to be his literary executor. Annie Gamwell, the surviving aunt, owned the rights and worked with Barlow. Barlow wasn't much of an executor, being a young fellow and a bit of a mliquetoast, honestly. August Derleth was more knowledgeable, more ambitious, and ultimately more ruthless. Through force of personality and, this must be said, a practical know-how that Barlow and Gamwell lacked, he gained control (if perhaps not exactly true ownership) of many of Lovecraft's copyrights and exploited them handily and to positive effect for Lovecraft's continued publication. He also created many derivative works which for years obscured where Lovecraft ended and Derleth began.

Regardless of the ethics of Derleth's decisions, the important points are that Lovecraft did not lose control of his copyrights due to his encouragement of other writers to add to the so-called "Cthulhu Mythos" and further, Lovecraft did exactly what an author should do—he made his wishes clear to his next of kin and assigned an executor. The chaos to come happened after Lovecraft's death and has much to do with the personalities of the parties involved and a bit to do with the always slippery world of American copyrights, renewals, and the essential truth that possession is nine tenths of the law. It has nothing to do with a number of other writers putting words like "Cthulhu" and "Necronomicon" in their stories with Lovecraft's permission, which would not lead to a dilution or disruption of copyright at any rate—not anymore than George R.R. Martin giving HBO permission to make films of his books would lead to a dilution of Martin's copyrights!

Incidentally, when Derleth claimed the copyrights for Lovecraft's work, he was quite protective of them. He threatened Weird Tales and writer C. Hall Thompson when the magazine published some of Thompson's Lovecraft pastiches, and it worked! Thompson's fledgling career as a weird fiction author was over. Copyright worked just fine.

Two, Lovecraft died in poverty for two major reasons: the Great Depression led to the near-collapse of capitalism, leading to many people dying in poverty, and Lovecraft was a mental defective. He was essentially incapable of caring for himself in the way many adults would be. He couldn't hold a real job for any length of time, and hardly had any idea how to apply for one. (One method he used was to write long and self-deprecating letters to potential employers.) Were Lovecraft not an adult during the Great Depression, he may have lucked out and ended up caught by the social safety net. Or perhaps he would have managed to get some alimony from his brief and unsuccessful marriage.

If Lovecraft hadn't such a goddamned basketcase, perhaps he would have stayed married or maybe he could have gotten it together enough to get involved with the WPA Writers Project—his wide general knowledge of New England architecture, history, and folkways would have made him an asset to the program and his long essay on Quebec demonstrates sufficient essayistic skill. Heck, when Putnam rejected Lovecraft's short story collection in 1931—collections were hard to publish then as well—he could have responded by submitting The Dream Quest of Unknown Kadath as a novel instead. (Kadath was written in 1927 and remained unpublished in Lovecraft's lifetime.) Had Lovecraft been less of a psychological wreck, he may have become a published novelist and even a small advance could have extended his life for years.

So, basically, Lovecraft was too batty to hold a day job and even too batty to really market his own creative work. That's a large part of why he was poor—the rest is simply that he was an adult during the Great Depression. During his lifetime, Lovecraft published one slim volume (200 copies of The Shadow over Innsmouth) and a relative handful of stories—sixty-five over the course of twenty-one years. (By way of contrast, I published my first short story in 2000—the one I sold earlier this week will be my sixty-fourth. I am not especially prolific.)

Lovecraft wasn't nearly as productive as Robert Howard and certainly wasn't a prolific novelist like Edgar Rice Burroughs. To suggest that copyrights are "all that separates" HPL from ERB is sheer gibbering lunacy. Lovecraft was publishing in second-tier pulps like Weird Tales when he wasn't publishing in amateur publications that didn't pay at all or paid, as Homebrew did for "Herbert West: Re-animator", five bucks a chapter (six chapters total). He broke into Astounding Science Fiction a year prior to his death. Edgar Rice Burroughs, on the other hand, published dozens of novels during his lifetime. Even had Burroughs been unable to draw a cent from those copyrights after initial publication, the comparison to Lovecraft would not be a fair one.

And that rather leaves out the fact that Lovecraft's stories—many of which involve some insane person recounting some indescribable horror from another dimension he remembers reading about someone else seeing—is rather less Hollywood-ready than, you know, Tarzan.

Finally, had copyrights worked out the way Martin would have had them, we probably wouldn't be talking about Lovecraft very much today. Derleth, for all his faults, was able to keep interest in Lovecraft alive and as he aged he encouraged writers such as Ramsey Campbell and Brian Lumley (see, Derleth was half-right!) to write "Mythos" stories. Colin Wilson's brilliant The Mind Parasites was written on a dare from Derleth. And it was the later underground comics and "acid rock" songs referencing Lovecraft that allowed the man's work to find a whole new audience. The loose leash built the audience, it did not dilute the audience. Part of Lovecraft's popularity is due to the fact that his work can be found in the Science Fiction Book Club (whose 2001 edition was produced with the cooperation of Arkham House) and edited by Joyce Carol Oates for the upmarket Ecco imprint (which did not cooperate with Arkham House). Lovecraft's copyrights could have easily ended up orphaned after Barlow committed suicide, or if Derleth had actually been compelled to show his paperwork to a court. That means nobody would have gotten to read the later stuff except for pulp magazine collectors. Orphaned copyrights can mean the end of a literary reputation.

Martin seems to think copyright is a magical deed to the "land" of a story rather than a government-granted monopoly that, among other things, expires. He wonders aloud if the Lovecraft estate got anything from various movie versions of Lovecraft's work without asking the equally important question—if it did, should it have as at least some of that work (e.g. 1921's "Herbert West: Re-animator") has probably been in the public domain for a while.

A large number of writers, many of whom have happily oinked away at the trough of the public domain and fair use in their professional careers and who certainly did so as readers, suffer from the delusion when it comes to their own stuff that owning a copyright is the same as owning a house. It ain't. Of course, companies do this all time—fair use ain't nothing but me using what I'm allowed to. When you do the same to my stuff though, well that's stealing! And you know what, that's fine. Writers can have all sorts of waterheaded ideas about what copyright means. If they manage to prosper despite their ignorance, good on 'em. But at the very least they should avoid rewriting history by trying to show Lovecraft as a negative example of the power of fanfic when ultimately, Lovecraft's reputation is what it is today partially because of fanfic.
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[User Picture]From: pixelfish
2010-05-08 07:38 am (UTC)

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I've long considered that obscurity and being a small fish in a big pond are a greater danger to my writing than fan-fic.

I recognised his citing of MZB--it was one of the reasons I was surprised Diana Gabaldon mentioned reading fan fic at all, since many of the authors I know who don't discourage fan fic also vocally note that they will not be reading the fan fic in their universe. What happened to MZB sucks, sure, but the lesson most people took from that was: don't read unsolicited work in your own universe and otherwise turn the benign eye away.

In terms of human response, the last thing I want to do is toss cold water on the passions of my potential readers. Basically, fan fic is increasing the positive feedback loop for my potential fans. They like the world, they write the world, they want more of the world, they seek out more. It loops back around, and best of all, it pollinates and spreads my world for OTHER people to eventually discover. And it keeps them engaged with the world, keeps it in the forefront of their mind while I'm between books. Seems like a great idea to me.

(Of course, I've also decided that when I pop my clogs, I'd like to reassign my work to the public domain, barring any dependents with medical issues.)
[User Picture]From: nihilistic_kid
2010-05-08 07:44 am (UTC)

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Even the MZB thing may be a bit more complex than that. The fan's version of the story is rather different than the usual MZB one—basically, it boils down to "MZB had a stroke and can't write anymore, but we're encouraging fanfic to harvest the best of it and buy it at cut-rates as work for hire to put under MZB's byline. Cooperate or we shall crush you."

Of course, who knows which version of the story is so. But there is more than one version and thus no reason to accept more commonly told one as unreconstructed fact.
[User Picture]From: princeofcairo
2010-05-08 08:19 am (UTC)

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Pretty much everything you say about HPL is correct, here, except that the novel situation is even worse. He had CHARLES DEXTER WARD (all caps very much intentional shouting) in manuscript when Putnam asked him for a novel.

The SECOND BEST HORROR NOVEL EVER.

Peter Cannon is right: Lovecraft was one pushy typist away from twenty extra years of life.
[User Picture]From: autopope
2010-05-08 10:20 am (UTC)

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Not true.

Nick said: even a small advance could have extended his life for years.

Alas, HPL died in hospital of bowel cancer, which was diagnosed on his admission about 48 hours prior to death. There was, bluntly, No Cure for this condition prior to the late 1960s/early 1970s when early chemotherapy came along -- and even then, the five year survival rate was tiny.

(Whether he'd have developed bowel cancer if he'd had more money/a different lifestyle is fodder for an alternate history story. But what we can say for sure is, developing bowel cancer in your early forties (a) sucks (just ask jaylake) and (b) suggests a genetic predisposition towards cancer.)

Edited at 2010-05-08 10:21 am (UTC)
[User Picture]From: rani23
2010-05-08 10:21 am (UTC)

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Great post! Thank you! I learned a lot!
[User Picture]From: eldritchhobbit
2010-05-08 01:00 pm (UTC)

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But at the very least they should avoid rewriting history by trying to show Lovecraft as a negative example of the power of fanfic when ultimately, Lovecraft's reputation is what it is today partially because of fanfic.

Well said indeed. Thanks for an excellent post.
[User Picture]From: matt_ruff
2010-05-08 01:14 pm (UTC)

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not anymore than George R.R. Martin giving HBO permission to make films of his books would lead to a dilution of Martin's copyrights

Well, actually, the whole point of a movie/TV contract is to "dilute" the copyright by transferring some of the author's legal rights to a production company and its partners.

The fan-fic equivalent would be if Martin said to HBO, "No, I won't formally license the rights to you, but if you want to drop fifty million bucks on a film adaptation, I probably won't sue you for infringement. Just don't show it to me!"
[User Picture]From: nihilistic_kid
2010-05-08 04:10 pm (UTC)

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No, licensing is not dilution—that's one of Martin's sub-mistakes.(Indeed, when copyright is unclear, licensing can be used to actually affirm a license. See Ron Howard's cooperation with the E.E. Smith estate over Lensmen—one could make a strong argument that some Lensmen stories are in the public domain, but for the next couple of years almost nobody will dare because they'd have to deal with Universal Pictures. The Derleth claim on Lovecraft's copyrights themselves worked this way for years.) "Dilution" actually means something—what it means just has nothing to do with what Martin is talking about.

The other is not realizing that Lovecraft didn't just vaguely tolerate fan-fiction, but gave explicit if informal license to several of his correspondents. That's not dilution at all; it's affirmation through use.
[User Picture]From: rfrancis
2010-05-08 01:50 pm (UTC)

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Thanks for the post. I find Martin's spaz-out fascinating particularly in light of long-time fanfic rejecters like Mercedes Lackey and Jim Butcher changing their minds of late (c.f. http://www.jim-butcher.com/news/000354.php), perhaps because of the realization that it keeps the conversation going, I dunno.
[User Picture]From: selkiechick
2010-05-08 07:39 pm (UTC)

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OMG- what awesome news (the embracing of creative commons- not the freak outs). Thanks for sharing the link!
[User Picture]From: mouseworks
2010-05-08 02:31 pm (UTC)

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Funny fields to be so concerned about fan fic given that much of s.f. and fantasy have always shared common meme pools, and contemporary s.f. is full of homages and corrections to Heinlein and fantasy draws heavily on various mythologies.


Given that we no longer teach classical languages as a general practice in our high schools, the old way of learning to write by doing translations is not what it was, but many writers historically began by translating work from other languages, fairly evidently better training for writers than creative writing workshops.

Good fan fic/vids by people I know to be intelligent tends to make me check out the original.
[User Picture]From: affinity8
2010-05-08 02:50 pm (UTC)

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I feel paltry at just 30 stories since 2003. Must write more.

Love the joke!
[User Picture]From: pantryslut
2010-05-09 04:42 am (UTC)

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Same here, but since 1996. (I have a lot of nonfiction, though! And poems! Um.)
[User Picture]From: derekcfpegritz
2010-05-08 03:49 pm (UTC)

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Good job. Martin is clearly one of those misguided old jackasses who believe copyright to be the be-all and end-all of a writer's existence when, really, copyright is only meant to protect a specific implementation of a writer's creativity--that is, a specific text. You can't copyright an idea, after all.
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[User Picture]From: criada
2010-05-10 06:47 pm (UTC)

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Yeah, my first thought on reading Martin's post was, "well, which one's got his own religion and magical system?"
[User Picture]From: jonquil
2010-05-08 04:09 pm (UTC)

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Thank you. I didn't know any of this.

[User Picture]From: ithiliana
2010-05-08 04:13 pm (UTC)

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Thank you--not only for a beautifully written putdown, but for the links to the posts on Lovecraft and copyright, and the multiple complexities of the MZB case.

I haz linked to your post and GRRM's (who, as a friend pointed out on my list, will no doubt be horrified at the flood of slash fiction that will innundate the internets as soon as the GoT is aired on HBO. He has NO idea, I venture to guess).
[User Picture]From: thessalian
2010-05-10 06:33 pm (UTC)

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What, you mean as opposed to the flood of slash fiction that's already there? Seriously, when a man publishes books in which yaoi, yuri, paedophilia and (fraternal) twincest are canon, he'd better not complain about slash-fic on that level of moral ground.
From: (Anonymous)
2010-05-08 04:31 pm (UTC)

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Correct me if I'm wrong, but didn't Lovecraft have pretty much a full-time job as a ghostwriter?

My understanding is that by far the bulk of his output (and income) was ghosting, with stuff written for his own byline being very much icing on the cake.


Doug M.
[User Picture]From: nihilistic_kid
2010-05-08 04:36 pm (UTC)

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He did make some money "revising" (essentially ghosting) but I don't think his income from that work—only a fraction per word of what even the pulps paid—would rise to the level of full-time pay, though he spent many long hours doing it. He also had a small income from a quarry, and at various points had his existence subsidized by either wife Sonia or his aunts.
[User Picture]From: kathrynthegr8
2010-05-08 05:05 pm (UTC)

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I don't know you, but I think I love you for that last paragraph up there. Thank you for writing it.
[User Picture]From: anatsuno
2010-05-08 05:38 pm (UTC)

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Great post!
Thank you for this history lesson, and for the further reading links about the MBZ case, which I heard talk of a lot voer the years but have never researched (I only ever heard The One MZB Version, aka the cautionary tale to frighten authors with).

Personally I was incensed by all the bullshit, which you noted, coming from the confusion between trademark and copyright - how IS is that a foreigner like me (I'm French, our copyright rules are different, though we've signed the Berne agreement, of course) knows more about American copyright than a best-selling author (that is to say, an IP tradesman!) who feels qualified to /rant about it/? Has the man no IP lawyer, no agent to ask questions of, or no access to the internet? Yet he blogs... dot dot dot.
[User Picture]From: nihilistic_kid
2010-05-08 05:42 pm (UTC)

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It's not even necessarily confusion. Why might even an IP lawyer tell horror stories about The Copyright That Died? Well, it'll lead to more work for him, and a lot of IP law is ultimately case law—something could happen one day, maybe, and don't you want to be ready? (Ultimately, copyright lawyers would benefit from copyright being weaker, as there's be lots more hours to bill.)

Failure to defend copyright could potentially be useful in an infringement case to show that the infringement wasn't wilfull, or might reduce damages, but it doesn't push anything into the public domain.
[User Picture]From: silviamg
2010-05-08 06:13 pm (UTC)

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I love how people have no idea what copyright is! Anyway ....

b. Lovecraft did not die in poverty because of this loss of copyrights.

Correct. He was offered an editing job at Weird Tales but did not take it. I'd say that had a bigger impact than the fact his stories are in public domain now because he died tons of years ago! (Basically he couldn't hold a job and was a weirdo, blame it on that and not fanfic).

c. If anything, the unclear provenance of Lovecraft's copyrights after his death (when they would have done him little good anyway) is what kept Lovecraft's work in print and vital to this day.

Indeed, and led to a mainstreaming of Lovecraftiana.

And, if fanfic really was that bad, George Lucas should be poor as shit. But he's known how to leverage his fan base to make lots of money. That includes turning a blind eye to harmless fan fiction with no commercial value.

I'll say it again: the day there's erotic lesbian fan fiction of my work is the day I've made the big leagues.
[User Picture]From: summersdream
2010-05-09 03:22 am (UTC)

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I'll say it again: the day there's erotic lesbian fan fiction of my work is the day I've made the big leagues.


At last, someone has the same philosophy I do!
[User Picture]From: plattcave
2010-05-08 06:30 pm (UTC)

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Nicely done.
[User Picture]From: arachnejericho.myopenid.com
2010-05-08 07:29 pm (UTC)

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George R. R. Martin?

Isn't he the fellow who writes War of the Roses fan fic with the serial numbers filed off and dragons added?

(And possibly a Mary Sue. Or a whole family of them. Their eyes are fucking purple, for gods sakes.)

Lovely post.

(And I love Martin's fan fiction a bit better than his other works.)
[User Picture]From: imago1
2010-05-09 03:22 am (UTC)

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LOL!
[User Picture]From: lokilokust
2010-05-08 08:38 pm (UTC)

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HPL TOTALLY STOLE ALL HIS IDEAS FROM F. PAUL WISLON AND YOU'RE A BIG THIEVING ARSONIST THIEF RAPIST!
.
as to martin's post, all i can offer is a slight 'lol,' and not much more.
[User Picture]From: davidbain
2010-05-08 08:41 pm (UTC)

dav

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Where the fuck is the fucking "Like" button on fucking Facebook?
[User Picture]From: arachnejericho.myopenid.com
2010-05-08 10:21 pm (UTC)

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George R. R. Martin shut down comments on the first post and has put up a new post:

http://grrm.livejournal.com/152072.html

He saith, among other amusing things: "ERB v HPL. I never said that allowing others to play with the Cthulhu mythos was the ONLY reason Lovecraft died in poverty."
[User Picture]From: nihilistic_kid
2010-05-08 10:23 pm (UTC)

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"all that separates" ... "only" ...hey those don't mean the same thing. Who are you gonna believe? A rich and famous writer, or your lying English language?
[User Picture]From: roseembolism
2010-05-09 07:05 pm (UTC)

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Well I may be going against the flow, but I think that GRRM should focus on this issue. From my sources, he is in serious danger of finishing his latest novel in the next year or so, so he obviously needs something to distract him for a couple months.

If he plays his cards right, he could say something like "Until this issue is resolved, I won't finish "Game of Dragon Storm Crows!". And then he'll have a full year to blog about sports with the full sympathy of his fans.
[User Picture]From: silviamg
2010-05-10 07:19 am (UTC)

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I've given up on the next volume in that series. Even if it does come out by then I will have forgotten all about the characters and plot, and will need to relearn it all, then wait another 20 years for the other three or so volumes. So fan fic is looking pretty good right now!
[User Picture]From: jplangan
2010-05-10 01:30 am (UTC)

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Well said.
[User Picture]From: ceciliatan
2010-05-10 07:16 am (UTC)

More data points

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My only reservation about people writing fanfic in my universe was that a lawyer had told me I should under no circumstances read or comment on it for fear of it triggering some kind of spurious but expensive to settle lawsuit.

But I joined the Organization for Transformative Works this week in response to the kerfuffle and their legal chair sent me a very nice and clear-headed piece of advice saying it probably really is OK to read my fanfic if I'm already reading fanmail and the like anyway.

I posted the relevant bits of her letter to me, and my own statement in support, here: http://www.circlet.com/?p=1136
[User Picture]From: elfwreck
2010-05-10 02:59 pm (UTC)

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I hadn't even thought about the fact that Lovecraft wrote short stories in the horror genre, and Burroughs wrote action novels. I *had* realized that Burroughs' main character was male, white, wealthy, aggressive, physically fit, and all-around heroic, while Lovecraft's main characters were creatures from beyond this dimension with tentacles instead of mouths. Kinda cuts down on the mainstream appeal, there; lots more audience for Sexy Warrior than Gibbering Slimebeast.

::ponder ponder::
Lovecraft's works are public domain in most of the world (L+50 or L+70); it's only in the US that some of them are in dispute. Several of Burroughs' works are in the public domain everywhere. As far as I can tell, the Burroughs estate is trying to prosecute trademark violations, not copyright violations, for unauthorized Tarzan works. Over the next decade or so, I expect to see an explosion of IP lawsuits & C&Ds that don't bother to distinguish between those. (2019: the year The Mouse goes public, barring exotic new changes in IP law. I eagerly await the YouTube remixes of Steamboat Willie.)

I suspect a lot of corporate IP lawyers are fairly oblivious to the difference between a copyrighted character and a trademarked one. They prosecute "unauthorized use of our characters" under trademark law, and it never occurs to them that unauthorized use of a non-trademarked character isn't protected--and doesn't need to be defended--the same way.

Also, none of the anti-fanfic authors want to acknowledge how much of fanfic qualifies as "parody" under the law. Harry Potter and Draco getting it on? Obvious parody. Doesn't need to be funny. The stuff they object to most, is probably the most legally defensible as parody or transformative.
[User Picture]From: jonquil
2010-05-10 03:02 pm (UTC)

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GRRM's sub-argument seemed to run:

1. Burroughs is out of copyright.
2. Lovecraft is out of copyright.
3. However, if I wrote fiction based on Burroughs, Disney would sue the pants off me anyway. This would not happen with Lovecraft.
4. Therefore copyright is awesome.
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