The celebrated American science-fiction writer Steven Brust produced a fantastic, full-length novel, My Own Kind of Freedom, inspired by the television show Firefly. Brust didn’t – and probably can’t – receive any money for this work, but he wrote it anyway, because, he says, “I couldn’t help myself”. Brust circulated his book for free and was lucky enough that Joss Whedon, Firefly’s creator, didn’t see fit to bring legal action against him. But if he had been sued, Brust would have been on much stronger grounds if his novel had been a savage parody that undermined everything Whedon had made in Firefly. The fact that Brust wrote his book because he loved Whedon’s work would have been a mark against him in court.
Cory Doctorow has another brilliant editorial for the Guardian: why he asks, does copyright legislation make it more easy to criticize a cultural work, than to celebrate it?
“Copyright’s regulatory contours allow for many kinds of use without permission from the copyright holder. For example, if you’re writing a critical review of a book, copyright allows you to include quotations from the book for the purpose of criticism. Giving authors the right to choose which critics are allowed to make their points with quotes from the original work is obvious bad policy. It’s a thick-skinned author indeed who’d arm his most devastating critics with the whips they need to score him. The courts have historically afforded similar latitude to parodists, on much the same basis: if you’re engaged in the parodical mockery of a work, it’s a little much to expect that the work’s author will give her blessing to your efforts.
The upshot of this is that you’re on much more solid ground if you want to quote or otherwise reference a work for the purposes of rubbishing it than if you are doing so to celebrate it. This is one of the most perverse elements of copyright law: the reality that loving something doesn’t confer any right to make it a part of your creative life.
The damage here is twofold: first, this privileges creativity that knocks things down over things that build things up. The privilege is real: in the 21st century, we all rely on many intermediaries for the publication of our works, whether it’s YouTube, a university web server, or a traditional publisher or film company. When faced with legal threats arising from our work, these entities know that they’ve got a much stronger case if the work in question is critical than if it is celebratory. In the digital era, our creations have a much better chance of surviving the internet’s normal background radiation of legal threats if you leave the adulation out and focus on the criticism. This is a selective force in the internet’s media ecology: if you want to start a company that lets users remix TV shows, you’ll find it easier to raise capital if the focus is on taking the piss rather than glorifying the programmes.
Second, this perverse system acts as a censor of genuine upwellings of creativity that are worthy in their own right, merely because they are inspired by another work. It’s in the nature of beloved works that they become ingrained in our thinking, become part of our creative shorthand, and become part of our visual vocabulary. It’s no surprise, then, that audiences are moved to animate the characters that have taken up residence in their heads after reading our books and seeing our movies.”