How to Win the Russet Noon Lawsuit

Full Title: How to win the Russet Noon Lawsuit and make a Million Zillion Dollars

The latest bit in the Russet Noon Saga seems to be that the author of that particular apparently-infringing work (note I'm going legal here?) is considering putting it up in installments on her blog. Now, since any traffic would make her some money, it still doesn't fall into the realm of fair use and she still can end up paying Meyers (or any other copyright holder) all her profit, plus penalties.

It occured to me, after Lady Sybilla dropped by, that there is a single escape clause at this moment. Parody.

Because the actual work has not been unveiled, only a number of really heavy-handed promo pieces, that the whole thing could still be played for laughs. This will result in death threats, of course, but it can still be quite profitable.

Here's what I'd do, if I found out that my wife was suffering from split personalities and had just produced Meyer fanfic under the name "Lady Sybilla". I assure you that this is NOT the case, but go with me here.

1. I would continue the promotional acts in progress, writing-oblivious-press-releases, hiring-actors, and other items designed to bullbait the Meyer / Little Brown / Summit (MLBS) right holding groups.
   
   
2. I would act for the next three months in all ways as if the original serious fanfic novel was going to come out on schedule in some way.
   
   
3. I would quickly rewrite the story with the following two changes - 1) every bad habit Meyer has as a writer would be exaggerated, and 2) all the characters would be vegetables, primarily potatoes: Sparkly vampire potatoes, hairy lycanthrope potatoes, angst-filled teenage celery.
   
   
4. When I finally published it, the blog universe would reverbrate with the power of the hoax -- even if the parody wasn't particularly well done -- and any legal actions by the MLBS group would become moot, since (A) the novel is obviously parody, and (B) the sardonic marketing for the parody is not itself in any way a copyright violation.
   
   
5. Then I would change my name and cash the checks anonymously, fearing for my life each time I signed the pseudonym.
   
   

A million zillion copies would be sold. Well, a few thousand anyway.

But what I'd really like is for someone else, not Meyer or Sybilla, to write this work and publish it, since it is settled law that titles are not copyrightable!

Russet Noon Analysis

Okay, so someone has written a popular series and you love it so much you want to write a sequel. Not only that, but you'd like to scoop some some profit off that other person's gravy train.

What do you do?

Well, if you're honest and like to obey the law, you either (1) ask permission or (2)you go get another idea. Otherwise, you write Russet Noon. (I started to give them a link, then decided not.)

Here's some words from the press release of the publisher (whose lawyer should know better):

"When fictional characters become such an intricate part of the popular psyche, as is the case with the Twilight Saga, legal boundaries become blurred, and copyright laws become increasingly difficult to define. This is especially the case when actual cities like Forks and Volterra are used as the novel's settings. Such settings are not copyrightable, as they are considered public domain. Similarly, the Quileute Nation is also not copyrightable, and neither are vampire or werewolf legends. Copyright laws protect writers from unauthorized reproductions of their work, but such reproductions only include verbatim copying. Characters are only copyrightable if their creator draws them or hires an artist to draw them. Stephenie Meyer herself borrowed a great deal from previous works dealing with these mythologies."

This isn't a hard call at all. The claim that because Meyers' writing is *popular*, any person can make fanfic and publish it for a profit is laughable on its face. That's tantamount to saying there is no copyright protection at all for characters, situations or fictional events.

I doubt that any judge will take more than three heartbeats to reject the claim that *popularity* blurs the boundaries of copyright law. Popularity actually acts in the favor of the copyright holder, since it raises the likelihood that the infringing work is motivated by profit. To demonstrate: if anyone wanted to get inspired and write a Vlad Bumbleblood, Hobbit Vampire fanfic novel, based upon my character, I think we could rule out profit as a primary motive.

Contrary to their publicity argument above, fictional characters are copyrightable to the degree that they are fixed in a medium (not necessarily a visual medium), and recognizable (rather than stock characters). Like, um, having names and descriptions and unique personalities. Existing locations may be public domain, but their use may not. For example, if there is a storm drain in a certain Dallas city block that I say has a nest of giant tap-dancing spiders under it, the Dallas storm drain is public domain, but the spiders are mine. Even if they are "stock" giant tap-dancing spiders.

Meyers has put together a universe based from certain legends, made certain personal assumptions and changes to those legends (sparkly vampires out during the daylight in the Pacific northwest), and populated it with recognizable characters. Not only that: those characters are in specific situations; this book is a sequel based entirely on those situations for those characters; this book mentions the past events invented by Meyers for those characters, etc.

I just wonder if the real motive behind this is to create massive publicity for something else by "Jacob and Bella". Or if they're just that ignorant of the law.

Apparently it's been withdrawn, but we'll see where it ends up. Remember that by definition that this is a "derivative work" based upon Meyers' series, so she actually owns the rights to this novel as well.

Oh, and read this humorous take over at prlog, which makes fun of both the authors and the screaming zombie Twilight hordes.

Race in Speculative Fiction

There's a big brouhaha -- possibly even a kerfuffle -- about race in speculative fiction building out there. Some of it seems pretty silly, or political pablum, to me, but here's part of the thread I pulled over here to avoid hijacking Editorial Ass's website.

Here's an anonymous rebuke to me:

Dal Jeanis--I hope you'll reconsider what you just wrote on this. As mentioned once previously in this comment thread, comparing "other" races to eg elves and ogres in itself shows that we have obviously NOT reached a point where there is no racism in literature. Depicting a character "of another race"--ie not white, since white IS our standard default--is far from a comprehensive solution to racism in literature. In those Victorian novels, for example, most "minority" characters are just like Fagin in Oliver--hurtful caricatures that buy into the worst stereotypes in order to "build character."

I'll have another post on it later, but here's my reply comment:

Okay, Anonymous 5:00 - My comment was clearly about SFF - speculative fiction, and specifically Hugo nominees, not "Victorian novels" in general. If you know enough Hugo-nominated Victorian novels in the last ten years to make a plural, please list them. I'll even accept Nebula, World Fantasy Awards, Stokers, Edgars and so on. Paranormal RITAs need not apply.

I read, study and write speculative fiction, and while no one can read everything that's out there, I'm very familiar with the best that gets published, since it's what I aspire to.

I refuse to allow anyone, especially anyone too cowardly to leave their name, to make blanket statements about the literature that I read. Especially ignorant statements based upon prejudice. You want to play, back it up with facts. So put up or shut up.

I'll even give you a single character to research. You tell me exactly how the very capable Stephen Black character in "Jonathan Strange and Mr Norell" is a "hurtful stereotype", given the social context of being a black human being in 1800's England.

Do it without cribbing from Wikipedia either. Read the book and use quotes from the actual text.

Or backpedal graciously. Your choice.

Dal

NOTE - I said "even ignoring spec fiction genres where the races are completely different". So I was specifically walking away from the discussion of nonhuman races, whether cliche D&D types like ogres or fanfic Klingons, or exceptional and subtle examples such as those crafted by CJ Cherryh, Robert Sawyer, AE Van Vogt, David Brin, Octavia Butler and Samuel R Delany. I walked away from discussing all the spec fic stories where the races have real, biological differences that have full expression in behavior, rather than being primarily cosmetic such as those within our own species. Those are cool, awesome, deep stories, which allow a full and honest metaphorical examination of the subject of race.

I also didn't deal with the hard scifi fast-forward posthuman characters for whom race is a silly retro concept - you can't even really determine their species, since it's just a matter of convenient reference.

Spec fiction has grown up. Go insult an easier target, or at least read enough to have an informed opinion.

Or come over to my blog and discuss some more.

And here's the place for that!

Ride-Along Adrenaline Rush

Romantic Suspense writer Juliet Burns recently posted on Sizzling Pens a fascinating glimpse into Fort Worth's police ride-along program, called "Citizen’s Police Academy".

The scariest part of the night for me came when we were called to check out a residential alarm and while searching the perimeter of the house, my officer found the back door open...

Lots of neat stuff there.

Tribbles and Threats, Tribbles and Threats

Some interesting scuttlebutt over on Sci Fi Wire regarding David Gerrold, Harlan Ellison, Star Trek, Paramount, and lawsuits.

The article implicitly brings up the question of whether a screen writer should get paid when his work is digitally sampled, as David Gerrold's Trouble with Tribbles was for an episode of DS9. Actually, almost every TV series has an occasional "canned" episode where they re-use clips of other episodes, with minimal extra contexting to pretend the episode something new. I hate those episodes, but presumably the writers of the original episodes should be getting paid some royalties.

As an IP creator, it's tempting to claim that Gerrold should get paid every time that something he made up (be it tribbles or particular now-cannon-historical events) gets re-used in derivative work. On the other hand, this work of Gerrold's was itself a derivative work from Roddenberry's and, arguably, from Heinlein's "Martian flat cats".

I would expect that, pretending that the TOS and DS9 episodes were stand-alones rather than part of series owned by the same people, that if the creators of the DS9 go-back-in-time-and-fight-tribbles episode were sued for plagiarism or copyright infringement by Gerrold, that they would lose. However, that area of law is more judge-decided than principle-based, as the Wind Done Gone (WDG) and Doctor Juice cases proved a couple of years back. The WDG case is particularly instructive and relevant, since the writer even used for the title a corruption of the title of the infringed work (Gone with the Wind) -- and used characters, the events and even important dialog points as a structure to support her novel which took place on the back side of Mitchell's story. Sound familiar?

Yep. GWTW done got sampled.

As far as the Harlan Ellison suit is concerned, there are two questions. One, what rights did Ellison sell versus retain? Two, when did Ellison become aware of infringement? Three, how long after that did he file suit? Umm, okay, that's three questions. So combine the last two into "is his lawsuit timely"? I'll discuss those in reverse order.

TIMELINESS

Tort law typically gives three years after the tort is discovered for the injured
party to file suit. Since the alleged infringement occurred over decades, and Harlan certainly kept up with the derivative work, I'm not sure that his suit can be well founded.

On the other hand, there was apparently an earlier settlement in 1982, according to this article in Deadline Hollywood, so it may be that Ellison can be fighting against a later breach. I doubt it, though, since the suit is attempting to recover damages across the whole forty years, and the wording of the lawsuit itself, filing here, includes the following wording:

15.Ellison avers that since he never received proper notice or accounting related to Paramount’s various exploitations of the City teleplay, the applicable time limitations have not yet began to run on claims for payment from those exploitations.

So, he is claiming that willful ignorance keeps the legal clock from starting. It's a ballsy claim, but I doubt that it will hold in a court of law. Some of his older infringement claims are likely to fall away if and when Ellison's paragraph 15 fails. But elsewhere in his filing he's kept his knowledge of when he learned what quite fuzzy, so I'll assume he's on his best game there. Paramount will have to prove that Ellison knew about particular infringments in order to exclude them, if he wins the basic point that they owe him anything.

In addition, it looks like Simon and Schuster recently (2006-7) was licenced to put out a 3-book Crucible series that's a clear infringement -- basically amplifying the events in the episode, focusing on each major TOS character -- and the 3-year clock won't be a problem there. Which means that there might be a presumption that Ellison will win something in the lawsuit on the merits, if he has any rights to collect on.

WHAT RIGHTS?

The bottom line question in the lawsuit is whether the definition of "publication rights" in the 1960+1966 WGA agreement is inclusive or exclusive. Does it mean just the publication of the word-for-word script, or does it cover a novelization? If it covers the novelization, does it cover derivative works of the novelization?

Any reasonable reading of "publication rights" with regard to City on the Edge of Forever would seem to include those Crucible novels. However, that's not how the WGA seems to be defining the terms - they seem to be claiming that only literally printing the screenplay is a publication right. This is the major legal issue in the case, and it's a contract law thing and an IP right law thing, not a "who's the good guy here?" question.

And once that part is decided, it may reach to deeper and more gnarly questions. Does it allow the writer to collect anything based upon the aspects of the production that were not part of his conception? For instance, the heart-shaped rock called the Guardian of Eternity was described how in Harlan Ellison's original screenplay? If I recall correctly, it was some kind of corridor of statues. So, do the royalties (if any) on Franklin Mint plates showing that harp-shaped thing go to Ellison, or to the rewrite guy, or to some forgotten DesiLu production designer?

Interesting to watch, but I'd hate to put any money on the outcome from what I know. Oh, actually I'd lay about five bucks there will be a settlement in 2010-11 with no terms disclosed. Which would put the lie to Ellison's "just doing it for my fellow writers" line.

Stay tuned.

New Review Up: Patriot Witch by CC Finlay

I just posted a new review for the book The Patriot Witch over at Abandoned Towers. The book is available for free download on scribd and on the author's site in a PDF format.

Here's the lede:

What does it mean when you get a free PDF download of a book, and you feel like you have to buy a physical copy just to tear it up?

It means it's a damn good read.

It's the first novel of a new trilogy by author Charles Coleman Finlay (aka CC Finlay), who is also a Nebula finalist for his novella "The Political Prisoner", which is also available to read for free online here.

Enjoy!

White Flow from Rosina Lippi

Crackling hot off a sparkly email, I just put up a new post on the White Flow blog by Rosina Lippi, author of Tied to the Tracks and Homestead, among six other novels in print.

Here's a teaser -

...
And there’s a glimmer, very faint. It's appeared so gradually you’re not sure how long you’ve been seeing it. Now it's a faint line in the darkness, and then, more slowly, intersecting that line, another one. A corner. A window? A door?
...

The Sky Above Me...

Allen Abp148 wrote a post recently about "How much Description is too much?", where he lists three types of writing he finds excessive:

The first is obvious description. Obvious description is the type that leaves people saying “duh” and putting the book down. Things like “The sky above me”, “The ground below me”, don’t laugh, I’ve actually read these in published books.

I'm not sure I understand what the problem might be with the above phrases. Presumably, Allen is claiming that the phrase "above me" and "below me" are redundant, since the sky is always above and the ground is always below.

But can't there be value in calling the reader's attention to the fact that, well, "me" is in the picture, in relation to that sky or ground? Why not?

I mean, honestly, is there a rule that you can't remind the reader that the main character or narrator is there, in the picture? I often see sentences like, "Jane could see [or Jane saw] Dave stab the knife into John's pants and draw blood". and I wonder if "Jane could see" or "Jane saw" might better be deleted. Perhaps it's more immediate to say "Dave stabbed the knife into John's pants and drew blood". But isn't something also gained by reminding the reader that it's Jane's story in which Dave and John are fighting?

And, besides that, isn't there a difference in cadence and rhythm if you add "above me" rather than delete it? And isn't much of writing about such choices of the sound of words and lines and sentences and paragraphs, and how the words draw the reader on into your word and your characters?

This all harkens back to the editorial fad of trying to kill every last word and line that is not essential. That might be a good idea if you are sending the story by Western Union teletype... errr... sorry, no such technology anymore... typing it on a cell phone, maybe? Writing a Twitter novel?

But it's not a given for anyone else.

Write whatever works. Make it sound good, make it draw the reader in and lock them into the viewpoint character, (if any). Make them care.

What Killed the Thesaurus?

SnorgTees says this animal was the first dork of the Juraissic period, although from the text it appears it may have been the last.

Buy the Tee here.

Hat tip, Lizard Lair.

The most lovely person.. says the beagle

Quote from the undercover beagle -

“She is the most lovely person - beautiful, warm, nurturing, compassionate, powerful, eloquent, charming, funny. It’s just that she is also a nutcase who attacks people.”

This is from a Timesonline story of a gay activist who infiltrated the animal rights terrorist group ALF dressed as a beagle.

You can't make this stuff up.