The following post was my final assignment for Law and Regulation in Communication at RMIT, semester one 2015. This particular assignment got 92%. It’s about copyright, transformative works, and creative commons. I had an inordinate amount of fun writing it.
Transformative Works and Creative Commons: Whose Sandbox is it Anyway?
The concept of intellectual property and copyright has existed since at least 1662, when Charles II introduced the Licensing of the Press Act to prevent the printing of ‘unlicensed Bookes and Pamphlets’ (Paterson, 1968). The majority of copyright acts and amendments thereof since then have been aimed at increasing the duration of an author’s ownership of their work, even extending to after their death—as of 1998’s Copyright Term Extension Act, a work only falls out of copyright 70 years after the death of the author.
The concept of transformative works has similarly existed for a long time. In the 1800s the Brontë sisters, stalwarts of English literature, were writing stories and novels about the first Duke of Wellington, Arthur Wellesley (British Library, 2011). In the 1960s the Star Trek fandom brought transformative works into the mainstream with fanzine Spockanalia, which contained stories written by fans about the show’s characters (Verba, 2003). While most of these transformative works are referred to—and often disparaged as—’fan fiction’, there is a growing legitimacy and acceptance surrounding these derivative creations.
Perhaps the best known contemporary example of a transformative work becoming known as an original work in its own right is E.L. James’ Fifty Shades trilogy. The trilogy originated as a fan fiction derivative work of Stephenie Meyer’s Twilight series, posted online in instalments throughout 2010 and 2011 (Boog 2012a). But then James rewrote parts of the story, changed the characters’ names, and secured a seven-figure three-book deal with Vintage Books (Boog 2012b). As with the Twilight series, the book deal led to a movie deal. The derivations have come full circle with the existence of Twilight fan fiction set in the Fifty Shades universe (archiveofourown.org 2015).
When asked how she felt about Fifty Shades’ success, given its status as a derivative work of her own novel series, Meyer’s non-committal response was “I haven’t read it. I mean, that’s really not my genre, not my thing” (Prinzivalli, 2012). She also said that had she not written the original work that inspired James, ‘…[she] had a story in her, and so it would’ve come out in some other way.’ (ibid).
Other creators are more openly passionate about their dislike of transformative works. Anne Rice stated in the year 2000:
‘It upsets me terribly to even think about fan fiction with my characters. I advise my readers to write your own original stories with your own characters. It is absolutely essential that you respect my wishes.’ (annerice.com, 2000).
Rice later revised her position on transformative works, saying in April 2012:
‘I never read [transformative works]. Other writers feel differently about it and are happy and encouraging of it. I don’t make judgments—I prefer to ignore it. But if Fifty Shades of Grey grew out of that, well, there are no rules—books can come out in any variety of ways.’ (Peregrin, 2012)
Rice’s change of heart may have been due to the publication of the fourth instalment of the Sleeping Beauty Quartet. She published this series under the pseudonym A.N. Roquelaure in the United States beginning in 1983, with the fourth instalment being released in 2015 (Lamb, 2014). The quartet is a transformative work of the traditional ‘Sleeping Beauty’ fairy tale incorporating BDSM elements; Rice may have felt some kinship with James as a result, given the well-publicised themes of the Fifty Shades trilogy, and therefore issued her revised stance on transformative works.
Creators of original works who find that transformative works of their creations exist can, under current copyright law, send a cease and desist letter to have the works removed from public consumption, or sue the creator of the transformative work for plagiarism, in the event that the transformative work is not covered by the laws governing fair use and derivative works. If the original creator is deceased their estate may take these actions on their behalf. (Trimble, 2010.)
Which leads to the question: what of those authors not alive to affirm or protest transformative works based upon their original works? As older works enter the public domain, new transformative works may be created based upon these works, made easier by the fact that initiatives such as Project Gutenberg are working to make public domain works more accessible (Lebert, 2010). The difference between these and fan fiction seems primarily to be that derivations of public domain work are legally publishable, while fan fiction writers basing their stories on works still under copyright cannot legally sell their work due to copyright infringement.
One of the best recent examples of a transformative work based upon an original work that is now in the public domain is Gregory Maguire’s Wicked: The Life and Times of the Wicked Witch of the West. Maguire has taken elements from L. Frank Baum’s Oz books and reworked them into his own original novel (now a book series, plus a smash hit internationally staged musical). This legally published form of transformative work in this instance is only possible due to Baum’s death in 1919, putting the Oz series into public domain as of 1969 (as at the time the ‘plus 70’ rule was only ‘plus 50’ under the Berne Convention).
This grand success, along with countless other examples such as:
- movie adaptations of Shakespeare’s plays, from straight adaptations such as the Franco Zeffirelli (1968) version of Romeo and Juliet, to Baz Luhrmann’s more modern variation (1996), and West Side Story (1961), which relocated the story to New York and gave it a different and heavily violent spin
- Jean Rhys’ Wide Sargasso Sea, the 1996 prequel to Charlotte Brontë’s Jane Eyre (1847), that is now studied as a work of literature in its own right
- Gilligan’s Wake (2003), a critically acclaimed literary fusion of 1960s sitcom Gilligan’s Island and the 1939 novel Finnegans Wake by James Joyce (although this work walks a fine line between transformative work and a derivative work, specifically a parody)
- The short story ‘Sleepy Hollow’ by Washington Irving, which has been adapted into both a movie (1999) and a television series (2013-present)
indicates that transformative works based upon public domain works are becoming widely accepted—socially, ethically, and legally. They are also referred to as metafictional works, parallel literature, or derivative works, which is also a core concept when it comes to determining whether a transformative work is or is not legal. Derivative works such as parodies and satires are generally legal, while for other works the distinction is less clear.
The Berne Convention permits derivative works to an extent, although without specifically using the term ‘derivative’: ‘Translations, adaptations, arrangements of music and other alterations of a literary or artistic work shall be protected as original works without prejudice to the copyright in the original work.’ (wipo.com 2015).
Derivative works may be protected under fair use laws, with some cases successfully pleading this as a defence, although generally this is limited to fair use as short-form parody or satire rather than novel-length transformative works. And even fair use may not suffice as a defence, as famously demonstrated by the case of EMI Songs Australia Pty Ltd v Larrikin Music Publishing Pty Ltd, otherwise known as the ‘Kookaburra case’, wherein the use of a mere four-note melody from a popular folk tune resulted in a massive payout (alrc.gov.au 2015).
However, not all creators protest the transformation of their works as vehemently as Rice or Larrikin Music, or as Sharon Lee said of her characters in 2013: ‘they are our intellectual property; and they are not toys lying about some virtual sandbox for other kids to pick up and modify at their whim.’ (Lee, 2013) There are in fact creators out there willing to allow their original work to be ‘picked up’.
Kelley Armstrong, author of the bestselling Otherworld series, was asked how she felt about transformative works and responded as follows:
‘I’d be thrilled. What greater compliment to an author than to want to write stories using the characters/universe she created? If anyone ever did write fanfic based on my books, I wouldn’t just “not mind”, I’d link ‘em up to my site and show ‘em off!’ (Armstrong, 2003)
Armstrong is one of a growing number of writers who endorse transformative works in such a way and, while their feelings might change if financial gain were involved, this support by published writers of those who want to play in their ‘virtual sandbox’ encourages budding writers to practice and hone their skills in the world of transformative works before striking out on their own.
While it is in the interests of many large companies in particular to maintain their copyright as long as possible—the repeated extensions of the duration of copyright are sometimes informally referred to as the ‘Disney Law’ or ‘Mickey Mouse Law’ (Lessig 2001) due to Disney being one of the biggest advocates for increasing copyright length—in the last decade there has been a growing movement towards making works across a range of media more readily available for reuse, derivation, and transformation. The core of this movement is Creative Commons.
Creative Commons (CC) licensing originated in 2001 with a group of people from various backgrounds with an interest in giving the original creator of an original work more options in terms of how their work is used (Bollier 2008, p. 105). While the creator automatically assumes their standard rights under existing copyright law, they can opt in to one of the CC licences in order to make their work more readily reusable and adaptable by other people, which then overrides standard copyright law (Bollier 2008, pp. 203-228; creativecommons.org 2015a).
The method of CC licensing revolves around four basic elements as follows:
- Attribution (BY): the original creator, title, and CC licence type must be credited in any usage.
- Non-commercial (NC): use of the original work must be for non-commercial purposes. Selling the work as one’s own or any other for-profit use is not permitted; educational and similar uses are permitted.
- No Derivative Works (ND): the original work can only be used verbatim, meaning that images cannot be altered, text cannot be edited, etc.
- Share Alike (SA): any new work that one produces based on a CC licence using this element must be made available under the same terms as the original work.
These four elements are then combined in one of these six standard CC licences: BY, BY-NC, BY-SA, BY-ND, BY-NC-SA, and BY-NC-ND (creativecommons.org 2015c). The common element is that the original creator is always credited. Depending on the licence, a work based on the original work may or may not be used for commercial purposes, be adapted or modified, be publicly distributed, displayed, or performed, and be licensed to others (creativecommons.org, 2015c).
What this essentially means is that, if Baum were alive today and still writing Oz books, and he had chosen to release his works under an Attribution CC licence, Maguire would not have had to wait until after Baum’s death to publish Wicked. Baum would have the right to request that Maguire remove any identification of Baum as the original Oz creator if he felt that Maguire’s derivative work thereof misrepresented him (per section 3(a)(3) of the CC BY licence), but the point of the BY licence in this instance is to allow licensees to create derivative works. Nor could Baum necessarily sue Maguire and win, as CC licences are written so as to be enforceable worldwide, and to date have not been ruled invalid or unenforceable in any of the court cases where this issues has been raised (Case Law, 2015).
This is of course an extreme example, as the majority of CC licenses used go beyond the simple BY attribution. But it does serve to show just how radically the idea of Creative Commons changes the face of copyright as it has been known for years. As of 2009, an estimated 350 million works were published under CC licences (creativecommons.org, 2015b).
Perhaps the best known and largest work that is published under a CC licence is the website Wikipedia. The text entries published there, contributed by an entire world of writers with specialised information to share, is distributed under a BY-SA CC licence, meaning that whether the wiki’s content is reused in its original form or adapted, remixed or altered, it always must be attributed to the original author (while many people may edit one wiki article, each article has a History page that lists which editor has made which contributions), and it must be distributed under the same licence (BY-SA) as the original. (wikimediafoundation.org 2015; creativecommons.org 2015d). Simple reuse of resources such as Wikipedia that exist under a CC licence forms the majority of usage of CC licensed work.
The existence of these licences opens up different avenues of possibilities for creators of all kinds of original works, whether they are literary works, photographs (website Flickr.com has an entire gallery dedicated to millions of photographs and digital images made available under an array of CC licences (Flickr.com 2015)), or four-note melodies. Rather than holding on to their own works virtually indefinitely, they are able to open their works up to be legally shared, modified, transformed, and played with in the wide sandbox of the world’s creativity.
It also opens up more possibilities for creators of transformative works. CC licences mean that traditional copyright durations may not apply, so that creators of transformative works may not have to wait 70 years after the death of the author before publishing their own work. It is a reasonable assumption that the primary purpose of copyright is so that derivative works cannot be published, so CC licences allow the original creator to make that choice as to whether or not their works can be reused.
With the increasing use of CC licences, initiatives such as Amazon.com’s Kindle Worlds publishing service (allowing publication of transformative works of a select set of licensed media properties (Pepitone 2013)), and ongoing changes in the way that creative works of all kinds are made and shared in the digital age, it’s clear that copyright can no longer be contained solely by the comparatively simple strictures set out by Charles II in 1662. The future of copyright is, potentially, summed up by these frequently used words:
- commons, in that more works will be held in common usage rather than exclusively by the original creator;
- transform, in that the definition of copyright will continue to transform over time;
- and rights, in that the creator of a work will have more legal recourse to create their own terms of copyright for their own personal creations.
alrc.gov.au. (2015). ‘Fair use and quotation.’ ALRC. Accessed 2 June 2015. <http://www.alrc.gov.au/publications/9-quotation/fair-use-and-quotation>
annerice.com (2000) ‘Messages to Fans’ AnneRice.Com via Archive.Org. Viewed 2 June 2015. <http://web.archive.org/web/20080309010457/http://www.annerice.com/ReaderInteraction-MessagesToFans.html>
archiveofourown.org. (2015). Fifty Shades of Grey – All Media Types – Works. Archive of Our Own. Viewed 2 June 2015. <http://archiveofourown.org/works?utf8=%E2%9C%93&work_search%5Bsort_column%5D=revised_at&work_search%5Bother_tag_names%5D=Twilight+Series+-+All+Media+Types&work_search%5Bquery%5D=&work_search%5Blanguage_id%5D=&work_search%5Bcomplete%5D=0&commit=Sort+and+Filter&tag_id=Fifty+Shades+of+Grey+-+All+Media+Types>
Armstrong, Kelley. (2003) ‘Fanfiction, What Do I Think Of It?’. Kelley Armstrong. 10 October. Viewed 4 June 2015. <http://www.kelleyarmstrong.com/cgi-bin/ikonboard.cgi?act=ST;f=32;t=1203;st=0>
Bollier, D. (2008). Viral spiral. New York: New Press.
Boog, J. (2012a). ‘The Lost History of Fifty Shades of Grey’. Adweek.com, 21 November. Viewed 2 June 2015. <http://www.adweek.com/galleycat/fifty-shades-of-grey-wayback-machine/50128>
Boog, J. (2012b). ‘Fifty Shades of Grey Began as Twilight Fan Fiction’. Adweek.com, 12 March. Viewed 2 June 2015. <http://www.adweek.com/galleycat/e-l-james-book-began-as-twilight-fan-fiction/49290>
British Library. (2011). The Brontes’ secret science fiction stories [Press release]. Viewed 2 July 2015. <http://pressandpolicy.bl.uk/Press-Releases/The-Bront%C3%ABs-secret-science-fiction-stories-4e7.aspx>
Copyright Act 1968 (Cth) amended by Copyright Amendment Act 2006 (Cth).
Copyright Act 1976, 17 USC, ch 3, amended by the Copyright Term Extension Act (1998).
creativecommons.org. (2015a). Creative Commons – Attribution 4.0 International – CC BY 4.0. Viewed 31 May 2015, <https://creativecommons.org/licenses/by/4.0/legalcode>
creativecommons.org. (2015b). History – Creative Commons. Viewed 31 May 2015. <http://creativecommons.org/about/history>
creativecommons.org. (2015c). Creative Commons Licences Fact Sheet. Viewed 31 May 2015. <http://creativecommons.org/materials/factsheets/cc-licences.pdf>
creativecommons.org. (2015d) ‘Creative Commons — Attribution-Sharealike 3.0 Unported— CC BY-SA 3.0’. Viewed 4 June 2015. <https://creativecommons.org/licenses/by-sa/3.0/>
Flickr.com. (2015) ‘Flickr: Creative Commons’. Viewed 4 June 2015. <https://www.flickr.com/creativecommons/>
Lamb, J. (2014). ‘New erotica coming from A.N. Roquelaure, aka Anne Rice.’ USA Today, 20 November. Viewed 2 June 2015. <http://www.usatoday.com/story/happyeverafter/2014/11/20/an-roquelaure-anne-rice-beautys-kingdom-viking/19277393/>
Lebert, M. (2010). Project Gutenberg (1971-2009). USA [online]: Project Gutenberg.
Lee, S. (2013). ‘The second answer.’ Sharonleewriter.com, 26 October. Viewed 2 June 2015. <http://sharonleewriter.com/2013/10/the-second-answer/>
Lessig, L. (2001). ‘Copyright’s First Amendment’, UCLA Law Review no. 48, p. 1057; 1064.
Musiani, F. 2011. ‘Editorial Policies, “Public Domain,” and Acafandom.’ Transformative Works and Cultures, no. 7.
Patterson, L. (1968). Copyright in historical perspective. Nashville: Vanderbilt University Press.
Pepitone, J. (2013). ‘Amazon’s “Kindle Worlds” lets fan fiction writers sell their stories’. CNN Money, 3 May. Viewed 2 June 2015. <http://money.cnn.com/2013/05/23/technology/amazon-fan-fiction/?iid=HP_LN&hpt=us_bn5>
Peregrin, T. (2012). ‘Anne Rice On Monsters, Facebook And Fifty Shades Of Grey.’ Chicagoist, 12 May. Viewed 2 June 2015. <http://chicagoist.com/2012/04/13/interview_with_a_vampire_chronicler.php>
Prinzivalli, F. (2012). ‘“Fifty Shades Of Grey”: Stephenie Meyer Speaks Out’. MTV News. Viewed 2 June 2015. <http://www.mtv.com/news/1685954/fifty-shades-of-grey-stephenie-meyer/>
Trimble, M. (2010). ‘Setting Foot on Enemy Ground: Cease-and-Desist Letters, DMCA Notifications and Personal Jurisdiction in Declaratory Judgment Actions’. IDEA-The Intellectual Property Law Review vol. 50 iss. 4 pp. 777–830. Viewed 9 Jun 2015. <http://scholars.law.unlv.edu/facpub/105/>
Verba, J. (2003). Boldly writing. Minnesota: FTL Publications.
wiki.creativecommons.org. (2015). Case Law – CC Wiki. Viewed 31 May 2015. <https://wiki.creativecommons.org/Case_Law>
wipo.int. (2015). Berne Convention for the Protection of Literary and Artistic Works. Viewed 31 May 2015. <http://www.wipo.int/treaties/en/ip/berne/index.html>