The Crawling Chaos of Copyright Law

[Zap Rowsdower]

Nick Mamatas

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.

***

...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 (Kadath was written in 1927 and remained unpublished in Lovecraft's lifetime.)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 on 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.)

[sologdin]

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

yeah, if martin argued that copyright is lost if not defended, it's an error.

that said:

copyright has to be actively enforced. sure, an infringement's still an infringement, but you have to seek a court order to stop the infringement, unless the gubmint gets interested enough in your case to send the US attorney after the infringer.

the copyright remains a property of its holder for the statutory duration, but the right to sue expires three years after the holder should reaosnably have had knowledge of the infringement. so, let it slip for three years, and you can't enforce the copyright as against a particular three-year-old infringement.

if HPL, say, allowed others to write cthulhu stories and those stories took off three years after publication, HPL is SOL on getting those moneys, even if he still holds his copyright in the cthulhu setting as a matter of law.

[Sariel]

GRRM said that? Sounds like he's a bit off his rocker I'd say.

[kcf]

It probably doesn't change much, but Mamatas is one of those writers who has written a Cthulu book. Did he mention that?

[Sariel]

No, I read his entire text and there was no mention of that (tsk tsk), but though his motives are then less than unbiased, I still agree with what he says. I've been a big fan of Lovecraft's writing ever since I was a kid and have pretty much read everything I've found of and about him up through the years. To my knowledge this Mamatas guy has the right of it.

[Ran]

As GRRM responded, he didn't intend to indicate that HPL's attitude towards copyright was the sole reason for his impoverished life and death; but he does feel it was a legitimate part of it.

I suppose it would have been better to "what if?" if ERB had not kept such control over his work, and instead let anyone who wanted play in his playground. Would people have preferred to read someone else's Tarzan work than his own? Would he have found others reaping the fame and rewards? Would he have put a stop to it, only to see that no one was any longer interested in reading his own work in comparison to the more talented authors who cut off from sharecropping?

Maybe, maybe not. One could see ways it could happen.

And would Lovecraft not letting people borrow from the mythos have given him more incentive to dig down and get his own work published? Who knows, really? Maybe he would have done more with his own material if he couldn't assuage himself by knowing that REH or some other author had gotten a bit of the mythos out there in their latest popular story.

sologdin,

Yes, I noted that in comment. For a working author, "inability to stop infringment and receive monetary damages" and "losing copyright" may be pretty much the same thing, for all practical purposes.

GRRM has, however, indicated that he isn't entirely clear on "losing copyright" and because of remarks he is going to look into it further (presumably by consulting his lawyer). Mamatas, of course, can be seen in comments putting forward the notion that copyright lawyers conspire to make sure their clients believe that they have to actively defend their copyright for no legal basis in law, simply so they can continue to have lucrative work.

[sologdin]

hahahaha a bit paranoid, then, mr. mamatas.

dude still went after the low-hanging fruit. martin's point about MZB was much more salient.

[pika]

It probably doesn't change much, but Mamatas is one of those writers who has written a Cthulu book. Did he mention that?

It sucked too.. I was very unhappy.. the concept of Jack Kerouac and the Beats have to stop Chthuhlu from manifesting off the California coast and destroying the world.. Then I got it.. read it .. and was left wondering.. why did I just spend money on this?

So he can't even lay claim to having made a GOOD Chthuhlu pastiche..

[Blaine]

Why is the argument always "Why Fanfic should not be allowed?" Clearly, the correct argument is "Why on Earth does anyone want fanfic encouraged?"

[Sariel]

And would Lovecraft not letting people borrow from the mythos have given him more incentive to dig down and get his own work published? Who knows, really? Maybe he would have done more with his own material if he couldn't assuage himself by knowing that REH or some other author had gotten a bit of the mythos out there in their latest popular story.

... what?

If Lovecraft had not been so willing to share his work he might've worked harder to get published and thus copyright would've saved him if such efforts had produced royalties?

This doesn't even make sense from what we know of Lovecraft. Are you sure you're not jumping to GRRM's defence simply because it's GRRM when you have to stretch this far into unfounded, fringe speculation to support him?

When that is said I have not read GRRMs original text. Do any of you have a ling laying around?

[pika]

another thing to consider, did the HPL copyright problems pop up while he was alive? Or only after R.H. Barlow and August Derleth began trying to re-publish the stuff for Arkham House?

I'd hazard a guess though, that HPL got more out of a casual reference to his work by REH, FBL, CAS, Kuttner and Moore than he probably got out of the money he made from selling a story too..

[Shryke]

Why is the argument always "Why Fanfic should not be allowed?" Clearly, the correct argument is "Why on Earth does anyone want fanfic encouraged?"

Thankfully not many people do. It's a small but vocal little community.

Like Furries.

[Mackaxx]

Ironic that wild cards is also a kinda a fanfic featuring X-men characters et al at times.

And [edit - incestuous]child rape of course.

Worth noting that I still read and enjoy the series as well, so I guess I'm a fan of fan fic.

[pika]

GRRM Dosen't like Fan Fic or Pastiche, thats fine, but I don't think we need to get personal about this.

I wanna know though what set this whole back and forth off?

[Ran]

Sariel,

Nick Mamatas is not the source of All That Is Undeniably True.

I even agreed in comments that I didn't find GRRM's argument especially persuasive. But to deny outright that there's no possibility whatsoever that Lovecraft's policies may have had a deleterious effect on his livelihood is, well, stupid.

Mack,

There are no X-Men characters in Wild Cards. You may be confused by the fact that Chris Claremont wrote a story or two later in the series...

rabbits,

All the posts can be found at GRRM's Livejournal.

[jurble]

Why is the argument always "Why Fanfic should not be allowed?" Clearly, the correct argument is "Why on Earth does anyone want fanfic encouraged?"

Finally, someone who sees the light.

[Sariel]

This...

No, I read his entire text and there was no mention of that (tsk tsk), but though his motives are then less than unbiased, I still agree with what he says. I've been a big fan of Lovecraft's writing ever since I was a kid and have pretty much read everything I've found of and about him up through the years. To my knowledge this Mamatas guy has the right of it.

.. and this is what I said:

... what?

If Lovecraft had not been so willing to share his work he might've worked harder to get published and thus copyright would've saved him if such efforts had produced royalties?

This doesn't even make sense from what we know of Lovecraft. Are you sure you're not jumping to GRRM's defence simply because it's GRRM when you have to stretch this far into unfounded, fringe speculation to support him?

When that is said I have not read GRRMs original text. Do any of you have a ling laying around?

This is your response:

Sariel,

Nick Mamatas is not the source of All That Is Undeniably True.

I even agreed in comments that I didn't find GRRM's argument especially persuasive. But to deny outright that there's no possibility whatsoever that Lovecraft's policies may have had a deleterious effect on his livelihood is, well, stupid.

How does this response by you match at all what I said? I rarely take well to people distorting my posts, and this is an especially blatant straw-man.

I'm sorry if I was too crass in my comment about your defence of GRRM, but the part I quoted simply makes no sense in regards to the discussion at hand. Even if were purely speculating on the what-ifs of Lovecraft's life it was still pretty far out there as far as alternative realities go.

[Sariel]

edit: double post :blushing:

[sologdin]

i suspect that once fanfic is authorized, then the setting essentially has co-authors, and the master narration can only progress by democratic agreement of the authorial committee. i can understand why certain authors want to maintain dictatorial control over the narration that their labor has initiated and sustained (which is an intellectual interest separate from any pecuniary gain associated with the copyright)--but it's easy to understand why other authors might encourage co-authorship of the setting.

in some cases, it works out well; george lucas is not the best writer, so co-authorship has aided the SW master narrative. martin, on the other hand, is a good writer, and i'm not persuaded that his setting needs help at the moment (though it's a point of principle that other minds can always benefit a project).

[The Anti-Targ]

I think people should be free to borrow from other author's work, even plagiarise. But, the extent of the borrowing/plagiarising should be acknowledged by the borrower so the originator's connection to the new "work" is clear. And if the borrower / plagiariser makes money from the work, then a proportion of the money made (according to the extent of the borrowing / plagiarising) should acrue to the originator.

If that sort of thing was codified into publishing law, with no, or a much longer, SOL then authors/artists might find themselves with a decent amount of passive income, and Mr. Lovecraft (probably) wouldn't have died in poverty. Or no one would buy the fan fiction because it's such crap and the originator's work would stand as a beacon of light, and remain a solid and steady source of income.

There is nothing inherently wrong with taking someone else's idea and putting you own spin on it. After all a great deal of the fantasy literature that's out there is exactly this, though it has been spun sufficiently that no one could successfully claim breach of copyright. I mean take the Shanara series as an example: LOTR lite would be another possible title.

So it's really GRRM being precious about his world / characters than any real moral principle being at stake.