Tuesday, March 11, 2008

following on

My children and I love the work of Arnold Lobel, who wrote the very well known Frog and Toad series of stories. Lobel’s story, The Letter, in which Frog writes a note to his friend Toad, gives it to a passing snail to deliver and then hurries to Toad’s house so he can witness the joy it brings, has one of the best punchlines in children’s literature. “Four days later…”

A while back, one of my sons asked me why we never meet Toad’s parents in any of the stories. “Doesn’t Toad have a Mama and a Daddy?” he wondered.

We do briefly meet Frog’s parents in one of the scarier stories in the series. In Shivers, Frog tells Toad a story about how he once was lost in the woods after a picnic with his mother and father. The young Frog, wandering lost and alone meets up with a terrifying figure, and must use his wits to save himself from being eaten. But, that’s the only glimpse we get of any “parents” – a somewhat unsatisfying couple who can’t seem to keep track of their young son. I enjoy this tale for its playful treatment of narrative – Toad keeps asking Frog if the story is true, and Frog keeps answering, “maybe it is, and maybe it isn’t.”

Still, the missing Toad parents make my kids uncomfortable, so we’ve written our own Frog and Toad story. In our story, Frog and Toad go on a long walk through the forest in order to visit Toad’s parents. On the walk, Frog stops Toad three different times to ask him if he remembered to bring a certain snack for them (repetition of questions is an important structural element in Frog and Toad stories). First Frog asks about strawberries, and the two friends sit down to enjoy a snack of fresh berries. Later Frog asks about cheese, and they eat cheese. Finally, Frog asks if Toad remembered to bring Timbits® -- my kids love Timbits® -- and Toad reveals that he has forgotten the little donut holes. Crisis!

Luckily, just then, two little boys arrive along the forest path. These boys have the same names as my sons, and they are appropriately dressed as Batman™ and Basil, the Great Mouse Detective™. As well, they just happen to have a box of Timbits®, ten chocolate glazed and ten sour cream glazed (mmmm, sour cream glazed – this preference is my only appearance in the story). They greet Frog and Toad, and everyone sits down to enjoy a final snack before the four of them finish their walk at the house of Toad’s parents.

This “fan fiction” is now a very popular addition to our regular enjoyment of the actual Frog and Toad stories – we listen to the original stories as an audiobook on long drives, usually with some Timbits® nearby. My kids helped me “write” this extra story and they tend to like to change up the details from telling to telling – the costumes in particular switch up according to their latest pop culture fixations.

I report this incident of fan fiction to illustrate how follow-on creativity can and does exist within a strong copyright regime designed to support original creators. I bought the original Frog and Toad stories as written by the late Arnold Lobel. In fact, my family has purchased many versions of them – individual print versions, compiled print versions in a collection of beloved children’s works, and the audiobook versions on CD. I’m very pleased that the family of the brilliant Arnold Lobel continues to benefit from the sale of these works. In fact, I hope they’re raking it in, because these stories provide great value. I’m confident we’ve received more dollars’ worth of entertainment from them than the actual price we paid.

I don’t feel any need to offer Frog and Toad Forget the Timbits® (working title) for sale, and I certainly don’t feel the Lobel family's right to stop me from doing so would be at all out of place within a vibrant, expanding culture. I recognize and celebrate Lobel's originality, and my debt to it in banging together this new story for my children. I don’t consider that I have the right to take the gifts given to me by Mr. Lobel’s text – his characters, his cadence -- and turn them into economic product. To me, that would be wrong – and frankly, as a writer, I would feel very unprofessional doing so. I also don’t feel the need to load the actual text of Frog and Toad Forget the Timbits® here on the Internet. It’s a private story for my children and me. We enjoy it privately, as a family.

But what about Basil, the Great Mouse Detective™, and Batman™ or even the Timbits® themselves? These elements of my fan fiction are controlled, in a way, by Disney, DC Comics and Tim Horton’s respectively, and at least one of these large corporations has a bit of history of very proactively protecting its rights in this regard. Am I not worried about a knock on the door, a lawsuit, or even a cease and desist letter.

Well, no, I’m not worried. First of all, I believe this kind of private use is functionally untouchable by copyright – who knows what I say to my kids in the privacy of my home or car? Secondly, by reporting on it here, I insist on my fair dealing user rights to use these names and terms. And finally, since I continue to happily buy product from all three of these corporations, and try to go out of my way to respect their rights in these transactions, if any one of these corporations were to take action against such private use they would alienate several generations of paying customers for no good economic reason.

Strong copyright protection for the rightsholders of economically active creativity need not be in conflict with use. We just all have the responsibility to get better at understanding where the intellectual property lines have been drawn, why these lines are necessary in the first place, and what we are more than free to do on our side of them.

Thank you Arnold Lobel for your very affordable and very available Frog and Toad stories. And thanks to Disney, DC and Timmy’s as well.

9 comments:

Infringer said...

"I report this incident of fan fiction to illustrate how follow-on creativity can and does exist within a strong copyright regime"

Sure follow-on creativity always has existed, and will exist within any copyright regime. You can't regulate private conversation (yet) But that is not the same as culture.



"I certainly don’t feel the Lobel family's right to stop me from doing so would be at all out of place within a vibrant, expanding culture."

You are not publishing your version of Frog and Toad, and therefore it will never become a part of any culture outside of your own immediate family. Lobel's right to prevent you and your reservation about sharing it in the first place illustrate quite well how strong rules and conventions against sharing, work very much against a vibrant culture.


"Strong copyright protection for the rightsholders of economically active creativity need not be in conflict with use."

Your own illustration demonstrates otherwise. We need a copyright regime which maximizes use while at the same time offering reasonable monopoly rights to the creators. This is basically the inverse of what we have now which maximizes rights holders control while offering minimal use rights.

John said...

And we need that why? Because I'm not allowed to make money from my Lobel fan fiction? I don't want to make money from it. This is a restriction I, as a user, happily accept.

I think you'll find most professional authors are quite happy with digitally shared fan-fiction as long as it does not cross over into their economic rights to their work. I choose not to share mine, but you need not conclude that I think such sharing is wrong. Respectful sharing is the cornerstone of our library system, which all professional authors support.

I think it's clear you disagree with current copyright laws. The problem, as I see it, is you have utterly failed to show convincing evidence that they are as destructive and suppressing as you believe them to be. You believe your Death by Copyright website is somehow conclusive, but what I see on it are many reasonable instances where intellectual property rights have been defended. In fact, I find your site to be kind of paranoid, as though you feel a copyright monster is out to get you and all the culture you want access to.

The fact that there are some unreasonable defences of IP does not mean that protecting IP is bad, but that seems to be your conclusion, which is really, sadly, illogical.

Finally, your concern for unregulated private conversation would be admirable (you'll note my own defence of it in my posting -- you did read the whole posting, yes?), if it weren't a bit diluted by what I see as your website's defence of plagiarism and industrial censorship.

Infringer said...

What was the motivator for the first author to create the first work? I am constantly being told it is these economic rights. Well, if that is true, then where is the motivation for subsequent authors to adapt and build upon those same works? Those rights are reserved by the first author. You can't say that we need strong copyright to provide incentive for some creators, but at the same time say that other creators who use previous works as a base, don't need the same rights. Which is what you are saying by stating that strong copyright laws do not interfere with strong vibrant culture.

At some point I'd like to have a discussion with you regarding where the line SHOULD be between appropriate and excessive copyright protection. I think it would be interesting.



"Respectful sharing is the cornerstone of our library system, which all professional authors support."

Which was founded at a time when books could not be mass produced, with contributions by authors who had no expectation of royalties.

I do wonder how libraries would be received by authors if they were starting today? I expect there would be calls for royalty payments because these institutions would be infringing their economic rights. Sort of like SAC and music eh? Hell, we already have the Public Lending Right Commission which pays authors royalties despite the fact there there is no requirement for it under law. I like the name though. It certainly suggests that authors have rights that they really don't.



"The fact that there are some unreasonable defences of IP does not mean that protecting IP is bad, but that seems to be your conclusion, which is really, sadly, illogical."

It's not just the fact that unreasonable defences exist. It is the fact that they are often successful, and the fact that there are NO consequences for person(s) employing these unreasonable measures.

Most things on my website are creations which I believe have every right to exist, even for commercial purposes. The fact that some copyright holders have successfully been able to suppress them (I'd call censorship, but I'm sure you have another name for it) is evidence of the systemic problems with our copyright regime.

For example, explain to me how these guys lost their copyright suit, and I am likely to lose mine if they ever catch wind of my music video. :-)

In most of these cases, reducing the term of copyright, having greatly expanded 'fair use' rights, requiring registration, and making all terms from the date of creation, would have prevented a lot of these issues, and made for a fairer copyright system.

John said...

Infringer,

What you, again, fail to recognize is that all sorts of provisions and use models exist for new creators to use the works of old creators in order to make new cultural products. Unfortunately for you, these provisions and models come in the form of rules, and you seem quite unhappy with the idea of rules.

As an example of what I mean, let me quote from page 42 of A Manual for Writers of Research Papers, Theses and Dissertations; Chicago Style for Students and Researchers (7th edition, University of Chicago Press):

"This is important: never assume that you can use what you find online without citing its source, even if it's free and publicly available. Nothing releases you from the duty to acknowledge your use of anything you did not personally create yourself."

This is what we expect of our academics and students, and it represents one of the lines between what you call creating new culture and what the world continues to recognize as plagiarism. There is nothing easy about following this rule, but its restrictions are necessary for proper scholarship.

Similarly, professional creators follow the existing fair dealing rules when using past works, and when we do, we rarely find ourselves on the receiving end of lawsuits. I see no reason why society should not expect the same rule-abiding behaviour from non-professional creators.

Your example of the silent song is, as I've come to expect of you, an extreme case meant to suggest an extreme problem. This is poor rhetoric.

I think there's a solid case to be made that the lines of plagiarism exist even in avant garde art. Would I have launched this lawsuit? No, I would have laughed. But I'm not sure I blame the original rightsholders for having a different sense of humour.

Chris Brand said...

"Am I not worried about a knock on the door, a lawsuit, or even a cease and desist letter.

Well, no, I’m not worried. First of all, I believe this kind of private use is functionally untouchable by copyright – who knows what I say to my kids in the privacy of my home or car? Secondly, by reporting on it here, I insist on my fair dealing user rights to use these names and terms."

I've asked you this elsewhere, John - which of the various sections of the Act dealing with Fair Dealing are you relying on here ?

With your repeated demands for "respect for the text", I would hope that you don't feel that "well I'm unlikely to get caught" (which I think is a reasonable paraphrase of "this kind of private use is functionally untouchable by copyright") is a reasonable justification for breaking the law.

I think that this kind of creativity should be legal, particularly when it's non-commercial and in the privacy of your own home, but I don't believe that it is, today, in Canada. Personally, one of the things I'm fighting for is to change our Copyright Act so that you don't have to rely on "not getting caught". You continue to insist that we have plenty of rights under Fair Dealing, which is why I'm again asking you to cite the section of the Act you're relying on here.

Infringer said...

John the rules for academics and others are not and should not be the same. So, I'm not sure what quoting from a research paper manual accomplishes.


"Similarly, professional creators follow the existing fair dealing rules when using past works, and when we do, we rarely find ourselves on the receiving end of lawsuits. I see no reason why society should not expect the same rule-abiding behaviour from non-professional creators."

I would be quite happy with rules if the rules were not a significant burden to creativity as they currently are. As Chris says in this same set of comments; there are no fair dealings protection for 'fan fiction'. Yet somehow in another comment you claim that that there is nothing wrong with doing so if you so choose. My god if a professional writer such as yourself can be so easily confused by the rules, how easy do you think it will be for lay persons to find themselves on the wrong side of the law?

My example of the silent song is an extreme example, however it is far from unique. My website is full of similar cases of past copyright holders using the law or intimidation to suppress other creators works. There are many many more beyond what is on my site.

"I think there's a solid case to be made that the lines of plagiarism exist even in avant garde art."

This is very interesting. Can plagiarism exist where nothing has been copied? Fortunately, even if a good case for plagiarism can be made, plagiarism is not illegal, so you couldn't sue for that even if you did want too. :-)

John said...

Chris,

There may be some confusion here -- the reference to fair dealing you quote was directed at my right to use all the trademarked terms and potentially copyrighted elements of Lobel's work in this very blog posting.

I am not against examining the current fair dealing provisions and seeing if they can't be better worded to make sure things like documentary "quoting" is made easier and is better provided for under copyright. These are very important user rights, and if folks are confused or do not feel confident in them right now, then absolutely we must address them.

What I do NOT want to see is a wholesale expansion of fair dealing that will infringe on the active economic rights of original creators. I believe a lot of the call for expanded fair dealing for educational purposes is simply cover for the belief that educational use of copyright protected material should not be paid use -- and as I've stated many, many times, as long as we continue to live in a market economy, I can't support such unpaid use of creator materials within a paid service such as education.

As to my own personal froggy fan fiction, I would say that, no, it isn't a question of me thinking simply "I'm unlikely to get caught." It is rather my interpretation of the spirit of copyright law, which involves a deep respect for text -- and by the way, this respect is demanded whether that text exists under continuing copyright protection or in the public domain.

I can't say for sure that fan fiction as I've described it could not be challenged under copyright law, but my opinion is that such a challenge would be against the spirit of the law. I am not insisting on equal rights of control over the Frog and Toad characters. I am in no way trying to earn revenue from them. And I am not willfully or otherwise fostering any confusion as to where the line is between the original text and my follow-on work. I therefore believe I am not infringing on any of Lobel's rights under copyright, and I am avoiding this infringement not out of fear of getting caught, but out of respect for Lobel and his text.

On the other hand, it does not bother me that we have a law that is being abused through frivolous litigation and chilling of legitimate use. To me this is not an extreme civil rights issue like suffrage -- in other words, a bad law in need of repeal. Rather this is a good law that has been subject to bad interpretation. There is a tendency out there to blame that on lawyers, but to me that is buck passing.

We all have a responsibility to understand at some basic level the importance of text integrity in our culture, AND the limitations of our right under copyright. The rules I quoted apply to everyone, not just academics. Academics simply have much more to lose should they ignore the rules.

As with fair dealing, if our current law does not adequately protect non-commercial, publicly shared fan fiction, then I am happy to see the legislators enter into that conversation. I don't really see the actual rules changing that much, but the process might serve to educate more folks about where lines need to be drawn, and why. This would then, hopefully, have the added effect of giving fan fictioneers more confidence to do the perfectly reasonable things they should be allowed to do.

Infringer said...

"What I do NOT want to see is a wholesale expansion of fair dealing that will infringe on the active economic rights of original creators. I believe a lot of the call for expanded fair dealing for educational purposes is simply cover for the belief that educational use of copyright protected material should not be paid use"

By definition if fair dealings was expanded then those activities would not infringe anybodies rights.

The problem as I see it is that the rights granted through copyright have been continually expanding (to the detriment of fair dealings) since the beginning of copyright.

Wholesale expansion of fair dealing as you call it would not be taking away monopoly rights as much as restoring user rights which have been slowly eroding over the last 200 years.

Chris Brand said...

"As with fair dealing, if our current law does not adequately protect non-commercial, publicly shared fan fiction, then I am happy to see the legislators enter into that conversation."

Thanks, John. That's a start. That last sentence I quoted is a pretty impressive example of a minimal commitment, but it's better than nothing. I'd be happier, of course, if you were to say "if [...], then I'd be happy to encourage legislators to fix this problem so that I wasn't infringing Lobel's rights under the law." or even just that you'd "encourage" rather than just be "happy to see" that conversation. Not doing so does give the impression that you're happier to assume that our law does make your work non-infringing and to rely on not getting caught if it doesn't. I do understand your concern for inadvertently removing other rights that you consider important, though.

The whole conversation does, of course, support my contention that the copyright law we have today is too complex. You should be able to know for sure whether this work you've created is infringing or not, without having to hire a lawyer. Otherwise, your desire to obey the law might have lead to a work not being created that otherwise would be, and that's not what this law is supposed to achieve at all.