Derivative works

[XerXesXu]

I think a rich author who was willing to take on fanfiction infringers as a matter of principle, knowing it would yield nothing financially, would have an excellent chance of winning. I think most fanfiction is infringement, and in most cases the author would win. They might not get much money out of it, but they probably could win an injunction to remove the infringing stories. The fact that it doesn't happen is not the result of it being a weak case legally; it's because it's not worth it financially to pursue.

In that imaginary scenario, it's probable that some would win some of the time, and some would lose. Each case will turn on its own merits. The Court would have to read the Claimant's work and the Defendant's work and decide the Defendant's work is fair use. The OP describes his work in the title thread as derivative. A parody can be derivative. A derivative work can also be transformative, (departure from canon? I see that phrase used a lot in discussions of fan-fic) that is have a different nature and purpose to the original, and thereby be non-infringing.

We won't be in a position to read both works and make a judgement; I don't know if Laurel would attempt to assess whether the OPs work would have a better than 50/50 chance in SCOTUS, that's not how she makes money. There are a variety of sentiments expressed, sight unseen, about the matter in this thread, and she may share one or other of those sentiments. I imagine that would guide her decision if she was pointed to the original story and asked to decide whether she would host it.

 

[lovecraft68]

it rubs the lotion on its skin or it gets the hose

This forum doesn't know what pain is!

Couldn't resist.

 

[SimonDoom]

In that imaginary scenario, it's probable that some would win some of the time, and some would lose. Each case will turn on its own merits. The Court would have to read the Claimant's work and the Defendant's work and decide the Defendant's work is fair use. The OP describes his work in the title thread as derivative. A parody can be derivative. A derivative work can also be transformative, (departure from canon? I see that phrase used a lot in discussions of fan-fic) that is have a different nature and purpose to the original, and thereby be non-infringing.

We won't be in a position to read both works and make a judgement; I don't know if Laurel would attempt to assess whether the OPs work would have a better than 50/50 chance in SCOTUS, that's not how she makes money. There are a variety of sentiments expressed, sight unseen, about the matter in this thread, and she may share one or other of those sentiments. I imagine that would guide her decision if she was pointed to the original story and asked to decide whether she woulds host it.

I agree with that. It's speculative, and you're probably right that the results, if such cases were pursued, would be mixed. But I think--and maybe you agree--that's the point. It's foolish to conclude from the absence of cases finding fanfiction to be infringing that it's OK under the law. The reality is it's a gray area, legally.

 

[lovecraft68]

I think what trumps here is Laurel allows these stories-at least with the nod to the original author. So if she doesn't see an issue with it, there isn't one...other than what people's personal opinions on the matter are.

The same people who defend stories featuring the glorifying and eroticizing of violence all of a sudden get on their moral high horse about writing a story based on someone else's characters. Says a lot.

Personally I wouldn't do it, but I really don't care if someone else wants to.

 

[KeithD]

The same people who defend stories featuring the glorifying and eroticizing of violence all of a sudden get on their moral high horse about writing a story based on someone else's characters. Says a lot.

Care to evidence that assertion?

 

[Bramblethorn]

I think there's a significant difference between using a world-famous property like Star Wars and using a property by a fellow Literotica author.

Star Wars generates billions of dollars. Fanfiction stories, even if legally infringing, are like a tiny unnoticeable mite on the skin of the monster. The monster, if it wanted to, might be able to take legal action against the mite, but it probably won't, for a variety of practical (not ethical) reasons. So the mites keep doing their thing, knowing that their legal status is uncertain but that practically they'll be tolerated.

There's no reason whatsoever to apply this same logic to a Literotica author. We're not making money off this. We do it for personal reasons. I think there is an unspoken understanding among us that we will treat each other with a level of personal respect that does not exist when it comes to dealing with the Star Wars property. A kind of unspoken contract. I see that contract as entailing the requirement of getting permission before writing a derivative work of another author's work. Laurel's statement appears to support that view. And going back to what I said before, I think the burden of proof is on the person who wants to use another's work, not on the original author. Be cautious. Interpret permissions narrowly. This is the way to treat others with respect and to avoid conflict. Assume that you do NOT have permission unless you very clearly do.

I come to a similar conclusion but via a different path.

I'm not sold on the idea that Literotica authors owe one another a higher level of respect than we do outsiders simply because we're on the same site. To me that feels more like tribalism than ethics: if it's wrong for somebody to write an unauthorised continuation to a Literotica story and post that continuation on Literotica, why would it be less wrong for them post it on, say, Lush or SoL or Ao3 instead? And it breaks down when people are members of more than one 'tribe'.

If George Lucas were to announce that he has a pseudonymous Literotica account that he's been using as an outlet separate from his films... would that mean all the Star Wars fics that were previously ethical to post here suddenly become unethical? That doesn't seem right to me. If anything, I'd be more comfortable with having SW fic here if we knew that Lucas was okay with the site.

For me, the crucial difference isn't community but ubiquity.

My attitude to Star Wars is lukewarm. (Har har.) Overall, the movies are mostly fun, but not something I get excited about and not something I'd seek out. I've never bought a Star Wars DVD or action figure, never written an angry screed about how the latest movie retroactively destroyed my childhood. I can take it or leave it. But I can't escape it.

If I'm among fellow nerds, I need a certain level of SW knowledge just to follow the story. If I'm writing a space-opera story of my own, I have to deal with how Star Wars has shaped audience expectations. And SW fandom arguments sometimes become a way for people to signal their attitudes on RL political stuff that I can't afford to ignore.

Bottom line, while Star Wars is fiction, it's also a major cultural phenomenon that's part of the real world I live in. Whatever my opinion of it as a work of fiction, I don't get much choice about having to allocate a certain part of my brain to Star Wars stuff. When it gets blasted into our consciousness to the point where it becomes part of our general cultural vocabulary, it's unreasonable to then turn around and say we're not allowed to use that vocabulary.

An amateur story on Literotica doesn't have anything like that cultural reach, even within its own category. An author writing space opera and posting it to SF/F here is more in the shadow of Star Wars than of any of the stories here. To me, that's why fanfic of such things is different.

 

[KeithD]

I come to a similar conclusion but via a different path.

I'm not sold on the idea that Literotica authors owe one another a higher level of respect than we do outsiders simply because we're on the same site.

That's not my position at all. I believe each and every writer has the moral obligation to protect the proprietary rights of other writers to the extent that they would expect to hold for their own work. I'm heartsick that any writer would be so self-centered to not do this. This isn't isolated to what happens on Literotica.

 

[MediocreAuthor]

That's not my position at all. I believe each and every writer has the moral obligation to protect the proprietary rights of other writers to the extent that they would expect to hold for their own work. I'm heartsick that any writer would be so self-centered to not do this. This isn't isolated to what happens on Literotica.

So the golden rule? Do unto others as you would have them do unto you?

I agree wholeheartedly!

I wouldn't mind at all if someone borrowed every bit of my work to create their own stories with... IF they credited me.

"But M, not everyone feels that way!" you might say.

Again, that's fair! That's why I'd ask first.

But if they aren't available to ask? (Especially if they're DEAD?) Sorry... That's just a step to far.

Since some people are fine with fan works and some people aren't, I think you should take every possible step you can do ask. But if asking is impossible, then no one can tell you no.

If it matters THAT much, they could always put it in their bio. "Please don't create fan-works of my stories." I've seen authors do this, and it's MORE than enough to stop me from writing fan-works based off that author's IP.

 

[KeithD]

But if they aren't available to ask? (Especially if they're DEAD?) Sorry... That's just a step to far.

That's not how copyright law and proprietary rights work. Write your own damn stuff. Don't ride on the backs of others because you don't have the necessary imagination to write your own stuff.

 

[Duleigh]

That's not my position at all. I believe each and every writer has the moral obligation to protect the proprietary rights of other writers to the extent that they would expect to hold for their own work. I'm heartsick that any writer would be so self-centered to not do this. This isn't isolated to what happens on Literotica.

We have the moral obligation to respect the property rights of other writers. It is up to the courts to protect the property rights

 

[KeithD]

We have the moral obligation to respect the property rights of other writers. It is up to the courts to protect the property rights

It's more up to the strength of character of other writers.

 

[Bramblethorn]

There are plenty of court rulings about fanfics. The biggest one, which Lit used to link on every fanfic story here, is Hustler Magazine vs. Jerry Falwell. In the 80s the US Supreme Court universally ruled that it was permissible for Hustler to publish cartoons of Falwell as an incestuous drunk under freedom of speech policies because they had a disclaimer stating the cartoons were false and not about the real Falwell. This has yet to be overturned and is considered the highest US law on the subject last I checked. Hustler’s publisher and Falwell also counted each other as friends years after settling the case, by the grace of God.

Simon has addressed most of this one already, and I think he was already driving at this, but I'll make it more explicit: the category is "Celebrities & Fan Fiction", not just "fan fiction". The category hosts a mixture of fanfiction (stories set in a fictional world of some other author's creation), real-person fic (fictional stories about real people, not based on somebody else's fictional setting), and stories that exist in a grey area between the two (e.g. if I were to write a story about meeting $ACTRESS and then leaning heavily on her most famous character for the sexual hook of the story).

The boilerplate notice from that category referencing Falwell was about the "celebrity" side of the category - basically "please don't sue us for publishing fic about real people, it's not defamatory". Not a copyright thing. Yes, it was used in a category that includes fanfic, but that doesn't mean it was about the fanfic side of things.

In my life as a fanfic writer (I’ve been doing it since the ‘90s), I’ve asked a few creators about their opinions on fanfics at conventions. Their responses vary. Greg Weisman, the show runner for Disney’s Gargoyles in the 90s, gave the usual position. He tolerates fanfic for its aid to promoting his work and occasional good spin but he usually won’t admit to reading it because of conflicts about canon details vs what the original author wrote.

I don't know about Weisman, but the #1 reason why virtually all pro authors refuse to read fanfic (or won't admit to it) isn't about discrepancies between canon and fanon. It's the opposite scenario: author plans out a series, publishes Book #1, and before Book #2 comes out, somebody publishes fanfic which anticipates the same plot developments that the author already had planned for #2. (Often because #1 telegraphed them!) Then Book #2 comes out, the fanfic author thinks the original author copied from their fic, and sues.

Another author, PN Elrod of the Vampire Files, politely asked fans not to write fanfics of her work while admitting she could not stop them. Other celebrities laughed about it- this includes some of the actors whose parallel universe depictions have appeared in my work. Author Mercedes Lackey admits she got her start in fanfic, so how can she shame it? Author Diana Galbadon damns fanfic authors for stealing her visions.

Which is ironic, because Gabaldon's own "Outlander" series leans pretty heavily on Doctor Who and lifts a character directly from Longfellow:

https://doctornolonger.tumblr.com%2Fpost%2F681533732099883008

 

[Duleigh]

It's more up to the strength of character of other writers.

That still falls under respect. Protecting is an actual physical effort. Leaving protection up to other writers would allow writers to prosecute plaigerism, copyright infringement, and idea thieft.

 

[Bramblethorn]

If it matters THAT much, they could always put it in their bio. "Please don't create fan-works of my stories." I've seen authors do this, and it's MORE than enough to stop me from writing fan-works based off that author's IP.

Authors certainly can do this, but I'm not convinced that the onus is on them to do so. I haven't hung a "please don't borrow my lawnmower without asking" sign on my house, but that doesn't mean I'm okay with people swiping it.

 

[PapaRomantic]

My attitude to Star Wars is lukewarm. (Har har.)

I see what you did there....

 

[ElectricBlue]

Writing a fan-work is not stealing and it isn't plagiarism, unless you don't openly acknowledge the source you're borrowing from.

Still someone else's characters though - but no debate on the legalities or ethics of it. I don't quite get fan fiction, but that's on me, not the folk who do do like it .

 

[SimonDoom]

That's not my position at all. I believe each and every writer has the moral obligation to protect the proprietary rights of other writers to the extent that they would expect to hold for their own work. I'm heartsick that any writer would be so self-centered to not do this. This isn't isolated to what happens on Literotica.

I agree with your "do unto others" perspective but come to a somewhat different conclusion.

If I were JK Rowling, and I'd created a multi-billion dollar fiction empire famous the world over, I'd take a pretty sanguine view of amateur authors wanting to write fanfiction stories based on my works for no money and posting them online. Ethically, it wouldn't bother me, and practically, I'd be thinking to myself that the fanfiction phenomenon if anything creates more interest in the universe I have created. It probably helps, rather than hurts, my book sales. And nobody is actually making money off it. I wouldn't feel the same way if someone were selling their own Harry Potter books for money on Amazon. I'd turn my attorneys on them like a blow torch.

I think that what we've seen is that many famous authors DO look at things this way, although some don't. Anne Rice, for instance, was well known for disliking fanfiction and she was outspoken about it. But some authors seem to let it go, probably for the reason I described. They realize that although it's arguably copyright infringement it actually adds value to their intellectual property.

None of this applies to authors at a place like this, or, to address Bramblethorn's point, to authors at other similar sites, who aren't getting paid for their stories and who don't have fame and power. I wouldn't attempt to write fanfiction of their works any more than I would of Literotica authors.

 

[MediocreAuthor]

Authors certainly can do this, but I'm not convinced that the onus is on them to do so. I haven't hung a "please don't borrow my lawnmower without asking" sign on my house, but that doesn't mean I'm okay with people swiping it.

Imagine you I near an old house, it's been abandoned (as far as I can tell) for 11 years. There is a lawnmower on the back porch, but no locks on the gate or No Trespassing signs.

If I (for some weird reason) need to borrow that mower, I'd take everyone possible step to contact the owner. I'd ask around, do my research, lots of things...

But at the end of the day, after 11 years, I'd borrow that mower, use it, refill the gas, and put a note on it letting the neighbor know that I borrowed it.

If they had any complaints, I'd apologize. "I'm sorry sir, it's been 11 years. We figured no one was coming back for it at this point. It won't happen again."

 

[AchtungNight]

I’m just gonna disengage from this conversation. I think I’ve made the necessary points. Thx for the discussion, y’all.

 

[Bramblethorn]

Imagine you I near an old house, it's been abandoned (as far as I can tell) for 11 years. There is a lawnmower on the back porch, but no locks on the gate or No Trespassing signs.

At the risk of straining the analogy: where is this house?

In some parts of the world, it's reasonable to interpret "no locks on the gate" as meaning the owner doesn't care whether anybody trespasses; if they cared about the stuff inside, they'd have protected it.

But in others, it might be better to interpret as "the owner didn't think they needed locks on the gate because surely nobody would be so rude as to come in and take their stuff without asking, and they didn't want to insult potential visitors by treating them as potential thieves".

(In rural regions, it probably just means the farmer doesn't want to have to drive all the way out to the gate to let in visitors who have legit reason to be there.)

This site has a mix of people from all around the world with different norms and expectations, and it's perilous to over-interpret these kinds of signals without knowing somebody else's backgrounds.

If I (for some weird reason) need to borrow that mower, I'd take everyone possible step to contact the owner. I'd ask around, do my research, lots of things...

But at the end of the day, after 11 years, I'd borrow that mower, use it, refill the gas, and put a note on it letting the neighbor know that I borrowed it.

If they had any complaints, I'd apologize. "I'm sorry sir, it's been 11 years. We figured no one was coming back for it at this point. It won't happen again."

I'm not sure "need" applies here though.

 

[MediocreAuthor]

At the risk of straining the analogy: where is this house?

In some parts of the world, it's reasonable to interpret "no locks on the gate" as meaning the owner doesn't care whether anybody trespasses; if they cared about the stuff inside, they'd have protected it.

But in others, it might be better to interpret as "the owner didn't think they needed locks on the gate because surely nobody would be so rude as to come in and take their stuff without asking, and they didn't want to insult potential visitors by treating them as potential thieves".

(In rural regions, it probably just means the farmer doesn't want to have to drive all the way out to the gate to let in visitors who have legit reason to be there.)

This site has a mix of people from all around the world with different norms and expectations, and it's perilous to over-interpret these kinds of signals without knowing somebody else's backgrounds.



I'm not sure "need" applies here though.

I'm just telling how I'd react in that unique (admittedly weird) situation. I don't think my choice would be immoral, although it might be illegal in certain areas.

Same with writing fan stories if I couldn't reach the original creator. I can't imagine a scenario where that would happen... But if it did, I'd do my best to contact the creator. If they were unavailable, I'd do whatever I wanted, and apologize if they showed up with issues.

 

[TheRedChamber]

Omg, that "sits on the lap" line made me legitimately lol.

Leia: "Is that a lightsabre in your pocket or are you just pleased to see me?"
Luke: "Actually it really is..."
Leia accidentally activates the saber with her buttcheck. The inside of the X-wing is painted red with chunky blood.
Luke: "And I thought she smelled bad on the outside."
R2D2 beeps sadly.

 

[TheRedChamber]

I think (and this is an ethical argument rather than a legal one) that there's a fundamental difference between fanfics for massive properties and for fanfic/completions of Lit works.

JK Rowling (or whoever) has massive fame and status as the creator of Harry Potter. Having someone publish a story on a fanfiction website (not necessarily Lit, more on that in a moment) firstly doesn't affect that status, actually makes HP more popular, and was probably written by a fan who she should treat with some respect as they are/have spent a lot of time, money and attention on her work. Now, if someone is making HP-themed porn, she may not be happy about that as, if parents catch children reading that stuff, it's going to affect her sales negatively. But for the most part, other people's HP work is harmless and will never get 100th of the attention her version of the story does.

When a Literotica author copies another Literotica author's story universe or completes an unfinished story, they're effectively competing on a level playing field. People are way less likely to be aware of who is the real owner of the story and both authors are essentially the same status except the copier is purloining ideas from the original author. Given that attention (views, votes, comments) is the only currency on Lit, it does seem a bit cheap to muscle in on someone else's idea.

That said, I'm vaguely wondering if a blanket 'if you don't publish a new chapter every year your story is fair game for completion' rule would fly (a la Sony Spider=man). Probably not as it contradicts Lits basic premise that you retain full copyright of your own work.

 

[MrHereWriting]

Laurel's opinion on what disrespect the rights of other authors is different than yours. What are you going to do about that?

That's what it comes down to. Everyone in the AH could leave if they didn't respect Laurel's decisions and Lit would continue to thrive.

There's another website that published Alwayswantedto's stories after someone claimed to be their Archiver and promised to publish his stories once they found the right place for them. It took at least seven years to find the second biggest erotic website on the internet. He even had an email from Alwayswantedto, giving him permission to post his stories. I can fake an email. I can fake a dozen emails from people who had passed away. Anyone can.

I called BS, but the website's owner didn't care. He asked me "Why would someone post someone else's stories?" Which is funny, because someone was posting 8letters' stories without permission on one of his lesser/sister websites, which is full of stories from authors who no longer post. I notified 8letters, but I didn't contact the website's owner to say, "Hey, so, why would someone publish someone else's stories?" (I'm tired of beating dead horses.)

Anyway, this Archiver started posting in 2020 (I looked it up) and some of the most recent posts are in 2023. Now, you can download Alwayswantedto's stories from various places, but the most recent uploads by this Archiver are the stories that come in giant blocks of text if you download them from the main source of Alwayswantedto's deleted stories, which means (in my opinion) they've been reading the stories and trying to separate the paragraphs correctly. What kind of Archiver doesn't have the stories already properly parsed?

Bottom line: Right or wrong, ethically, morally, legally, whatever, site owner's will do as they please, especially when repercussions seem unlikely.

 

[lovecraft68]

Care to evidence that assertion?

Waste of time because you, I, and everyone who knows you also knows you're not going to read through these. But I'll give you a couple so you can't pretend no one here can ever prove anything which is your MO.

https://forum.literotica.com/threads/the-competition-for-“most-extreme-violence”-heats-up.1583102/

https://forum.literotica.com/threads/mechanism-for-removing-reported-stories.1583930/

https://forum.literotica.com/threads/how-is-it-that-abuse-is-now-king.1595838/

Can take a peek at this one too because maybe you have an explanation for how a site that will boot a story for "I kissed her when I was 15" allows this.

https://forum.literotica.com/threads/how-in-the-hell-is-this-story-on-here.1591435/

This is far from all of them, you want more do a search for any thread with Loving wives in the title because the topic is generally brought up.

Seeing you won't read them a summary is the debate isn't that there is no room for violence/abuse/rape and assorted nastiness in fiction as of course there is. The issue is when these stories are posted in an erotic category for titillation(there is supposedly a rule against torture for titillation here, but yeah...right). Also the argument that this site and its smirking 'no rape' stories, but much of what's discussed here falls under pure non consent.

Another debate is "context' as in if it fits the story or if its in a non erotic category. There's merit to that, but also the fact this is an EROTIC story site it draws people looking to be aroused and regardless of intent people are going to see it as sexually glorifying things. There is a no under age and no rape rule here, yet look at the last link I provided.

Violence is not a kink and should not be presented as one. But people here will argue over the right of rule breaking material to be here, then squeal over this topic which the site has chosen to allow.