A Copyright Exception for Continuing the Conversation?

copyrightAt ApolloCon last weekend I moderated a panel on copyright issues. We discussed the current U.S. copyright law – agreeing that it was important but that some of the recent changes have gone too far – and the problem of people who do not seem to understand that by selling copies of an artist or author’s work, they are ripping the creator off.

We also spent a little time on the Creative Commons concept, which I like but find difficult to understand (and I have a law degree), and got sidetracked into a lot of discussion on DRM blocks on downloads, CDs, and DVDs. (Note to con organizers: think about doing separate panels on copyright and DRM. There’s just too much material there for one panel and people are passionately interested in both.)

At the end of the panel, I threw out a question that I’ve been pondering for some time, using the current controversy over a new book that is apparently about Holden Caulfield sixty years later. (Holden Caulfield is the protagonist of J.D. Salinger’s Catcher in the Rye.) Do you think, I asked the panel, that when a character has become a cultural icon – as Holden Caulfield has – that other writers should be allowed to use that character as a way of commenting on the culture?

To my surprise, the rest of the panel said absolutely not. In fact, one person said that in situations like that posed by Catcher in the Rye, the author should have even more protection.

Under current copyright law, there is one exception that allows someone to use another’s copyrighted material: satire or parody. What I’m pondering is a second, very limited, category: I’d call it “use for dialogue or continued conversation.” It would be similar to satire, except that it would cover works that use a more serious approach to comment on someone else’s work.

It wouldn’t cover books that are obviously intended to ride the original’s popularity – no eighth adventure for Harry Potter. It wouldn’t cover slash or fanfic. It wouldn’t cover anything that the original author might write. It would be aimed at retellings or use of characters that were clearly intended as critique of or dialogue with the original.

A few years ago, there was a big to-do over a book called The Wind Done Gone, which was a retelling of Gone With the Wind from the slaves’ point of view. In the end, it squeaked past copyright protection as satire.

But what if it hadn’t been considered satire? I think it would still have been a worthwhile book, one that should have been published. Gone With the Wind is part of our popular mythology about the Civil War and the antebellum South. Using the tropes of that book to discuss slavery and racism makes a more powerful statement.

Of course, anyone can do this with books that are out of copyright. I’m sitting here thinking that if no one has re-written Huckleberry Finn from Jim’s point of view, someone ought to. People steal from Shakespeare all the time; Akira Kurosawa made great movies out of Macbeth and King Lear, changing both of them to reflect Japanese culture.

And there are ways of commenting that clearly do not violate copyright: Michael Cunningham’s The Hours is certainly intended in part as commentary on Virginia Woolf’s Mrs. Dalloway, but he uses Woolf herself as a character, not Clarissa Dalloway. Real life public figures are fair game, even if their characters are protected by copyright.

So maybe we don’t need a copyright exception; maybe we just need more talented writers commenting on the work of others without stepping on their rights. Still, it’s a question worth pondering.


Nancy Jane’s flash fiction this week is “Tornado Warning.” Her collection Conscientious Inconsistencies is available from PS Publishing and her novella Changeling can be ordered from Aqueduct Press.

Check out The Nancy Jane Moore Bookshelf for more stories.


About Nancy Jane Moore

Nancy Jane Moore's science fiction novel, The Weave, is now available in print and ebook versions from Aqueduct Press. Some of her short stories are now appearing as reprints on Curious Fictions. She is a founding member of Book View Cafe. Her BVC ebooks can be found here. She also has short stories and essays in most of the BVC anthologies. In addition to writing fiction, Nancy Jane, who has a fourth degree black belt in Aikido, teaches empowerment self defense. She is at work on a self defense book that emphasizes non-fighting skills.


A Copyright Exception for Continuing the Conversation? — 3 Comments

  1. I think it’s funny that creative commons is more difficult to understand than plain old copyright. It’s meant to make things easier but it seems to just gum up the issue. And in the end does it even have any teeth? If it does then it would defeat the whole purpose and you might as well just copyright your stuff. IMHO.

    Thanks for your thoughts on this. As someone who loves satire and critical comment both, I think everything should be fair game. However, I think some authors are sensitive because of fanfic and how writers of it seem to muck around with the original author’s intent without actually making a further statement such as a satirist or someone doing deconstrucion might.

    Reminds me of the problems hip hop artists encountered when they first started sampling James Brown etc. Not sure what was decided about all that, but it certainly changed the face of music and music production.

  2. I think you have a contradiction here between this: What I’m pondering is a second, very limited, category: I’d call it “use for dialogue or continued conversation.” It would be similar to satire, except that it would cover works that use a more serious approach to comment on someone else’s work.

    and this:
    It wouldn’t cover slash or fanfic.

    Or, to be clearer, you find a contradiction between those categories where there isn’t one, legally. Fanfiction (yes, even slash!) is entirely capable of commenting critically on a text, and indeed often does. The only difference between your proposed “critical dialogue” and critical fanfiction is the commercial status of each product. And thus, you would choose to forbid fanfiction writers from publishing for free the kind of work you would approve in a commercial environment.

    That’s… interesting. But fundamentally elitist: only professionally-published writers are allowed to have opinions about these cultural artifacts, and everyone else just has to bite their tongues?

    (I would note that I don’t necessarily disagree with the court’s decision here, just with the reasoning used, which I think was unnecessarily broad and, as Rebecca Tushnet says, inconsistent with earlier law on the issue.)

  3. I don’t really care about the commercial publishing distinction. I assume that fanfic which meets the definition of satire would be protected under current law, and that fanfic that fit the rather narrow critical commentary distinction I’m proposing would be covered as well. But fanfic that just creates more stories drawn from the original story would be excluded, just as commercial attempts to write more of those stories would be.

    I’ll leave it to someone else to argue for a copyright exception for fanfic. I have no strong opinions on the subject.