Does one writer in Australia with two hundred and change fans plagiarizing material from a game company in the United States really threaten the ownership of the property?
Oddly enough, yes they actually do.
Intellectual Property (or IP for short) sounds like something very modern but, in fact, it is a very old concept. It is why patents exit. It was considered so important in the formation of the United States that patents and the IP rights associated with them were among the first things established in the fledgling nation.
Why? Because, basically, they wanted inventors to come up with new stuff. Why should inventors like Westinghouse or Tesla knock themselves out inventing wild new stuff if they couldn’t own it and profit by it afterward? Wouldn’t writer’s write better, artists strive to create more and better art or composers compose with more earnest determination if they could be assured that they would be compensated for their work? I can only write the novels that I write today because I don’t have to work two other jobs to make ends meet. If it were not for the protections of Intellectual Property rights, copyright and trademark, I could not possibly produce the work and the craft that I do today. Would I still write or make up games without such protection under the law? Probably, because I love to do it … but there would never have been a Dragonlance, a Death Gate or Drakis. Those works only exist because of the protections of IP law.
So what’s the matter with FanFiction? Nothing at all … so long as it does not challenge the validity and value of the IP.
FanFiction is most often a wonderful homage to an original work by dedicated and loving fans. That’s why it’s called Fan Fiction. So long as it does not impinge on the original intellectual property, it is a perfectly delightful expression of that love. It is when the fan writer believes that loving something is the same as owning it that they get everyone — including the IP owner — into troubled territory. It’s one thing to write fanfiction to share with other fans … quite another under the law to publish and sell it for money.
This was the issue with a recent brouhaha over a writer in Australia and the Mystara IP. If you’re unfamiliar with it, I wrote about this in a previous post.
One of the article’s readers then made the following point:
Obviously the woman’s a hack, but I don’t clearly understand how her profiting from the Mystara setting actually negatively impacts the IP holders.
I responded: An IP is one of the few things in the world with a title. Under the law it is treated the same as your car or your house — which also, by the way, have a title. Maintaining the value of an IP is also like maintaining the value of a car or a house. You want to keep that asset in good repair to maintain it’s value. You might lease your home or your car to someone else for money (essentially equivalent to licensing someone to use your IP) but you would be wise to put conditions in the lease saying that the person using your home or car would maintain its value under your guidance. If not, then there would be substantial penalties so that you could recover the value lost in your titled property.
However, as with most analogies, it was alas not a good one: because while an IP has a title just like your house or your car, it turns out that an IP is VASTLY more fragile than any physical objects of title. As Carl Rossi pointed out:
Intellectual property is a salable commodity. Companies can and often do, sell the rights for other people to use for their benefit.
If a company that owns intellectual property sells the rights to use it to one person and then fails to enforce its rights when another person takes it freely, the person that paid for it is, to use the vernacular, a “chump.”
In the case of a mostly retired IP, like Mystara, this still applies. Just because the holder of the rights (WotC) doesn’t use it anymore doesn’t mean that they could not sell it if someone was interested in using it for advertising, books, or a computer game.
By failing to enforce their copyright, it means that there is absolutely no reason for someone to pay money for its use.
The point here is that under the law, the owner of the IP is responsible to defend their rights — and if they don’t, they could actually lose control of their property and it’s value. This is why people and corporations who make a living off of their IPs seem so fierce in defending them because if they do not they could lose them.
Intellectual Property is a very fragile and ephemeral thing. That’s why it is so easily damaged and why we who make our living based on them must be fierce in their defense.