Continuations by people other than the original author/creator aren't worth getting worked up about.

[Britva415]

is this necessarily a bad thing?

All I was saying was that it was going to make it hard to succeed with that particular get-rich-quick scheme.

 

[Britva415]

Why wouldn't everything go straight to Project Gutenberg (or equivalents) and be completely free as an e-book? There probably is a smallish market for quality bound copies of public domain literature.

It does.

But that doesn't preclude people from making copies to sell anyway. There are a lot of buyers who aren't informed enough to know to get it from Gutenberg or Internet Archive, and/or not informed enough to know how to get the file formats they find there into their Kindle.

But they still want to read the stuff, so, sellers do rope in a few buyers for any particular title. I don't think any of them are selling a lot. Especially because of the competition, like I was saying, but also because there are readers who know they can get the stuff for free.

 

[SavagePeach]

I have the right to withhold a "green light." That's my right as an individual author on a free story site, just as much as it's the right of major film and video studios to do the same thing.

I just found this thread looking for something else, but I just wanted to clear up a common misconception that many people are making. This person is right, they have the same right to withhold a "green light" as a major film studio might have. Which is to say: they have almost no right to do so, and when they do it would only be under very narrow circumstances. There's a reason there's so much Draco/Herminoie slashfic and JK Rowling can't do anything about it, after all. Just like I can write some Hunger Games fanfic, so I can right PapaRomantic fanfic. Literotica can choose not to publish it, of course. But that doesnt' mean it can't be written and/or published somewhere else that allows fanfiction, such as Archive Of Our Own.

The Organization for Transformative Works (which hosts AO3 and has very serious IP lawyers that file briefs at the Supreme Court level) has a really good FAQ on this, but I'll reproduce a relevant portion here:

What do you mean when you say that fair use is the law that makes transformative noncommercial fanworks legal in the U.S.?

There are a lot of U.S. laws that may apply to fanworks, but copyright law is the most applicable. The fair use doctrine, found in the U.S. law at 17 U.S.C. section 107, describes factors that courts consider in determining whether a copy “fair use”–that is, it does not infringe copyright. Although fanworks usually copy some elements of copyrighted works, they tend to do so in a way that the fair use factors favor. Specifically, fair use favors uses that transform the meaning or purpose of the original; that are noncommercial; that copy only part of the original, rather than the whole thing; and that do not compete in the market with the original. These things all tend to be true for fanworks, which frequently add new meaning to the original, are shared for free, copy only certain elements of the original (like characters, settings, images, clips, etc. rather than entire works), and enhance the market for the original rather than competing with it. So the more a fanwork fits that description, the more likely it is to be fair use. This isn’t to say that other legal doctrines might bump up against fanworks–some fanworks might raise questions about trademarks, rights of publicity, or even defamation law–but fair use tends to make fanworks legal as a matter of copyright law.

So, you may be upset by someone else writing a sequel to your story. That's your right. And it's absolutely the right of Literotica not to publish it. I'm glad they have a clear policy on it. On the other hand, it's also someone else's right to borrow characters and setting and whatever else from your story under the fair use doctrine, just as much as they can borrow from professional authors and film studios, especially if they're not making money from it (one of the main factors that determines fair use).

 

[YmaOHyd]

So, you may be upset by someone else writing a sequel to your story. That's your right. And it's absolutely the right of Literotica not to publish it. I'm glad they have a clear policy on it. On the other hand, it's also someone else's right to borrow characters and setting and whatever else from your story under the fair use doctrine, just as much as they can borrow from professional authors and film studios, especially if they're not making money from it (one of the main factors that determines fair use).

I think this is a bit less black-and-white than you're making it. For one, not making money is a distinction when comparing to commercial work, but if the original work is by a hobbyist available for free, then it's not a distinction any longer. Posting on Lit probably means that it fails the 'enhances the market for the original rather than competing with it' prong of Fair Use as well. It's sharing a publisher, price point, market distribution method and potential audience with the original work. Being noncommercial isn't enough on its own; "attention, recognition, and contributions" received have been ruled as enough compensation to fail fair use.

The transformative nature of a potential sequel would be pretty difficult as well. Cariou v Prince suggests that a reasonable person would have to perceive a different meaning or message in the work for it to be transformative. A sequel is not guaranteed to pass that test. The JD Salinger Literary Trust, in fact, sued over an unauthorized sequel to Catcher in the Rye and won; this despite contention from academics that the sequel was "similar to a work of literary criticism" that framed itself "in an innovative 'post modern' form, specifically, that of a novel." 60 Years Later ultimately was found by the District Court to fail fair use.

• The character of Holden Caulfield was protected by copyright
• 60 Years Later lacked parodic and non-parodic transformative value in large part because the author's intent was to write a sequel
• The form of the work (both were novels) and the amount of material taken (the character of Caulfield, even renamed, and the style) failed the second and third factors
• The existence of 60 Years Later "might undermine the potential market for an authorized Catcher sequel" even though Salinger was very clear that he would not allow one, because "there is value in the right not to authorize derivative works"

Ultimately it doesn't matter at all because the only way to formally adjudicate Fair Use would be to go to court, and that'd mean spending an enormous amount of money defending your free story.

 

[SavagePeach]

I think this is a bit less black-and-white than you're making it. For one, not making money is a distinction when comparing to commercial work, but if the original work is by a hobbyist available for free, then it's not a distinction any longer.

IANAL, but I believe this is incorrect. The first point of 17 U.S.C. section 107 is that the derivative work is noncommercial, and makes no distinction if the original work was noncommercial as well. The "enhances the market for the original rather than competing with it" line is from the FAQ, not the actual law. The actual line is "the effect of the use upon the potential market for or value of the copyrighted work" and is a separate Fair Use factor. As there is no "market" for a completely free work, I would imagine the effect is minimal to nonexistent. Certainly it would be less than for a professionally published and monetized work.

Ultimately it doesn't matter at all because the only way to formally adjudicate Fair Use would be to go to court, and that'd mean spending an enormous amount of money defending your free story.

This is absolutely true. Fair Use is fundamentally very wibbly-wobbly and is left up to the courts to decide on a case-by-case basis. In the example of the Catcher in the Rye sequel, it was written for-profit (which is not to say a for-profit work can't also fall under Fair Use---it can, it just needs to meet a higher bar on the other factors). Would it have been Fair Use if it had been released for free? Maybe. It would have had another major "fair use" pillar supporting it then, but we can't ever know for sure. In the end, no one can truly say how much borrowing is enough to violate fair use without litigating it in court. But all that to say in general fanworks end up being fair use.

 

[IWroteThis]

As there is no "market" for a completely free work,

Sorry, but that statement is demonstrably false.

First, there are a lot of stories from Literotica sold on other platforms. Not only the stories directly released there, but sequels and expanded universe stories derived from them that were not released on Literotica.

Second, there are sites like Patreon that are markets where income is derived indirectly from stories posted here. Allowing others to steal that IP would allow them to establish a Patreon account that directly competed for market share for stories about those characters/settings.

 

[old_prof]

I'm not going to step into the legality of doing this.

To me, the ethics of doing this is also critical. What ever your feelings on fanfic for big name material, I think there is little justification for doing so to someone's work published here, unless you have their explicit permission. Yes, you're not going to sued for it, but that threat should nt be your only restraint on your behavior.

 

[SavagePeach]

First, there are a lot of stories from Literotica sold on other platforms. Not only the stories directly released there, but sequels and expanded universe stories derived from them that were not released on Literotica.

Again, IANAL, but I agree that stories which are monetized through something like Patreon might have some more protection as derivative works could be construed as more likely to affect the value of the original work.

However, I will push back on the "theft" framing. Calling fair use is "theft" is a narrative that has been pushed by powerful corporations *cough*Disney*cough* in their attempt to undermine fair use and essentially lock up or culture behind a paywall. If a work is sufficiently transformative, even if it was for-profit, it can certainly pass the Fair Use test. If I took a story written by another author, made a parody of it using their characters and settings and put it behind a Patreon paywall (not that I'm advocating this, because it would be a dick move) that's not legally much different than a SNL sketch about Star Wars. In both cases, someone is using copyrighted material to create new work for profit. Disney may not like SNL doing that and using their characters and setting, but they can't really stop them. Again, with the caveat that Fair Use is generally very hazy and can only truly be settled in court on individual basises. But when a derivative work is not for-profit, it's very likely to be considered Fair Use, as that is the first factor listed under 17 U.S.C. section 107. Although you'd have to take the author of the deriviative work to court to ever find out for sure.

Writing a free fan story using characters and settings from anyone from JK Rowling to George R.R. Martin to Random Guy on Literotrica is all the same---it is generally going to end up being fair use, especially if you take it it in a significantly different direction from the original (ie, the work is transformative). That is protected speech in the US. That doesn't mean the original author has to be happy about it (Anne Rice, for instance, famously hates fan fiction) or that a publisher has to publish it (Literotica is well within its rights to not publish it). But the creation of the work is not theft.

To me, the ethics of doing this is also critical. What ever your feelings on fanfic for big name material, I think there is little justification for doing so to someone's work published here, unless you have their explicit permission. Yes, you're not going to sued for it, but that threat should nt be your only restraint on your behavior.

Yeah, that's very important. Don't be an asshole and all. I certainly wouldn't ever do a "fanfic" of another author's work that didn't want me to do it. I'm just trying to clear up the misconception some people have that it's illegal to do so and the original author has carte blanche legal right to prevent it.

 

[old_prof]

I certainly feel I own the characters and worlds I have created for here. I think the vast majority of writers here that way.

I'm not a fan of any fanfic. I understand feeling that someone like Rowling or Martin traded control of that for the money they have been paid.

But the writers here have made no such deal. If you can't figure out your own characters and world without stealing someone else's work, you're not ready to be a writer yet. And yes, I will call it stealing. I'm not a big corporation, just an amateur writer who poured my own swaat and soul into those characters. And you think people should just steal that work, destroy its integrity to cut some corners because they're not creative enough to do it on their own?

 

[ElectricBlue]

Yeah, that's very important. Don't be an asshole and all. I certainly wouldn't ever do a "fanfic" of another author's work that didn't want me to do it. I'm just trying to clear up the misconception some people have that it's illegal to do so and the original author has carte blanche legal right to prevent it.

These debates constantly delve into the legal issues, and the fundamental ethics involved tend to go out the window.

For me, and many other writers here, the ethics of using someone else's content without their permission far outweigh the legality of doing it, especially on an amateur website where none of us have the bucks to take anything to court.

 

[YmaOHyd]

Writing a free fan story using characters and settings from anyone from JK Rowling to George R.R. Martin to Random Guy on Literotrica is all the same---it is generally going to end up being fair use

It will maybe end up being fair use. OTW is an advocacy organization, not a legal authority. Under 17 U.S. Code § 106 (2), the holder of the copyright has the exclusive right to prepare derivative works. Free fan stories mostly fall into the grey area of "it is not worth the time or expense to sue to prevent this"; most cases are going to fall flat on the grounds of it being difficult-to-impossible to prove damages.

Edit: when you talk about doing a parody of a Lit story or SNL doing a Star Wars sketch, that's one of the few places where fair use is pretty well-adjudicated. Parody is considered transformative. Unauthorized sequels have not generally been considered so unless they offer some other critical viewpoint. The Catcher in the Rye sequel case earlier was an unauthorized sequel that brought Holden Caulfield, the character, into the real world to interact with his creator Salinger for the purpose of literary criticism of Salinger's body of work; that was not considered sufficiently transformative.

Second edit:

Guided by an influential 1990 law review by federal appeals court Judge Pierre Leval, judicial decisions on fair use have focused increasingly on the concept of “transformativeness,” which subsequent courts have interpreted as a key factor in analyzing the first factor—the purpose and character of the use. That is, fair use hinges, in large part, on whether the secondary user’s creation merely “supplants the original” or gives it a “new expression, meaning, or message” or else serves “a new purpose distinct from that of the original work.” (Translations and sequels do not normally qualify as transformative and remain the exclusive right of the author or artist as a “derivative” work.) The more transformative the work, the courts reason, the less the other factors “may weigh against a finding of fair use.”

...
First, does the secondary use qualify under the types of uses permitted by the statute —e.g., criticism, comment, news reporting, teaching, scholarship, or research? This is not an exhaustive list, but neither is it irrelevant. There are secondary uses that clearly do not qualify under fair use, including the translation of a work to a different language or a sequel. Fair use is not open ended. So, as a threshold question, is the nature of the secondary work compatible with the sort of things listed in the law as possibly qualifying for fair use? This question goes to the first factor—the purpose and character of the use.

Dr. George S. Ford, Chief Economist of the Phoenix Center for Advanced Legal & Economic Public Policy Studies, 2018, in an article for the Federalist Society advocating for courts to re-focus on the economic fourth pillar of copyright law, decentralizing the creative first pillar. The emphasis is mine.

 

[SavagePeach]

I certainly feel I own the characters and worlds I have created for here. I think the vast majority of writers here that way.

I'm not a fan of any fanfic. I understand feeling that someone like Rowling or Martin traded control of that for the money they have been paid.

But the writers here have made no such deal. If you can't figure out your own characters and world without stealing someone else's work, you're not ready to be a writer yet. And yes, I will call it stealing. I'm not a big corporation, just an amateur writer who poured my own swaat and soul into those characters. And you think people should just steal that work, destroy its integrity to cut some corners because they're not creative enough to do it on their own?

You can call it anything you want, but it doesn't make it true. It's not theft, legally speaking. I'm not here to make a moral argument, except to say that I believe that authors here or on any site have the same protections and deserve the same level of respect as any other author. I don't believe you are any "less" of an author than Suzanne Collins or J.R.R. Tolkien. By the same token, when you published your work, you made the same "deal" as they did.

Again, I'm not here to argue the morality of it. I have my opinions, you have yours, and neither matter in the grand scheme of things. I think you're projecting on me, though. I'm not advocating you should just rip another author off. I'm just clearing up a misconception that you "own" your story in a way that prevents others from using it under Fair Use.

For me, and many other writers here, the ethics of using someone else's content without their permission far outweigh the legality of doing it, especially on an amateur website where none of us have the bucks to take anything to court.

Yes, I 100% agree with this statement.

Under 17 U.S. Code § 106 (2), the holder of the copyright has the exclusive right to prepare derivative works.

Yes, but 17 U.S.C. section 107 modifies 106. It even starts with "Notwithstanding the provisions of sections 106 and 106A, the fair use of a copyrighted work..."

 

[MelissaBaby]

These debates constantly delve into the legal issues, and the fundamental ethics involved tend to go out the window.

For me, and many other writers here, the ethics of using someone else's content without their permission far outweigh the legality of doing it, especially on an amateur website where none of us have the bucks to take anything to court.

"Fan Fiction" requires the existence of a fandom. Writing fanfic based on a story that got a few thousand views on a free website is just plain theft.

 

[IWroteThis]

However, I will push back on the "theft" framing.

You can push on a door that says pull all you want, but it's not going to open.

 

[YmaOHyd]

Yes, but 17 U.S.C. section 107 modifies 106. It even starts with "Notwithstanding the provisions of sections 106 and 106A, the fair use of a copyrighted work..."

Sequels are by definition derivative works. They may be covered by fair use if they are transformative among other factors, which is a bar that they have to clear in order to use the copyright holder's property. The burden is on the creator of the derivative work to establish this; it is not assumed.

 

[TheLobster]

However, I will push back on the "theft" framing. (…)

As you well should. It is not a theft because there exists no ownership; the concept of “intellectual property” is a relatively recent legal fiction that doesn’t rhyme with how people interacted with culture for many centuries prior to its invention.

It’s especially spurious to invoke when even the main ‘benefit’ of IP — protecting author’s profits — doesn’t apply when there any pretense of making profit has already been relinquished by the virtue of having published the work for free.

 

[Kelliezgirl]

As you well should. It is not a theft because there exists no ownership; the concept of “intellectual property” is a relatively recent legal fiction that doesn’t rhyme with how people interacted with culture for many centuries prior to its invention.

It’s especially spurious to invoke when even the main ‘benefit’ of IP — protecting author’s profits — doesn’t apply when there any pretense of making profit has already been relinquished by the virtue of having published the work for free.

Great point. It's especially funny to hear people defend the idea of fanfic because "those people made money", but criticizing people for wanting to do the same with stuff on Lit because "this is all free". They are essentially saying it's only OK to "steal" valuable property.

If someone uses your characters, writes a story set in your world, writes a continuation of an unfinished series... etc... you are in no way harmed.

As for the supposed "moral" argument... those are YOUR morals... who are you to impose your morals on someone else? People around here seem to get pretty riled up when other people want to impose their morality on them. Shouldn't that be a two way street?

 

[ShelbyDawn57]

Wheel of Time, Dune, Millennium, Phillip Marlowe, Jason Borne are a few examples of works being continued under various circumstances after the original author fied or stopped.

 

[YmaOHyd]

Wheel of Time, Dune, Millennium, Phillip Marlowe, Jason Borne are a few examples of works being continued under various circumstances after the original author fied or stopped.

Died, I think, for all of them, and their literary estates paid people to continue the work, often by working on unpublished or unfinished manuscripts. Not quite the same thing as someone picking up a series and running with it while the original author's still going, I don't think.

 

[CalBishForNow]

I'm not talking so much about how the site treats these works. I, by and large, agree with the policy as is. It's more about how I see authors reacting to this stuff and especially a lot of the horror that many AHer seem to have for the whole concept.

I think both of these posts are missing that I'm not encouraging 'continuing' authors to continue a story, I'm encouraging (or at least chewing over the idea of) general authors being more relaxed about these things. Clearly a lot of people disagree, but I think most of us are writing as a hobby, for fun and not for monetary gain and on that basis, I'm thinking it's okay to be chill.

People can reuse the concepts in my work all they want. I don't own the concepts, that would be crazy. In some cases I don't own them because they're too general, in other cases because I borrowed them myself from someone other specific work (borrowed, copied, stole, whatever). I've got a work in progress where I'll make that more explicit than usual. I'd be flattered if someone else does something with the concept and includes some kind of acknowledgement of my version of it specifically.

I'd rather they don't reuse the characters or events in the stories, though. Whether they're good or not, they're mine, and I'm greedy. More seriously, I might want to do something else with them someday. I've got one series in progress I'm stalled on but still have definite plans for how I want to finish it. If someone else does so first, it's more difficult and less fun for me, especially if they go in the same direction or close to it. I've got another series I haven't touched in months but still am attached to and have a few drafts in very early stages for continuations of. Same for some other things that might look standalone but aren't.

If someone writes an unauthorized sequel to one of my works and as the last step before publication uses Ctrl+F to replace all the identifying details with new ones, there's a good chance I'd never find out about it; I'm not under any illusions about how uniquely recognizable and evocative my characters are. If I did find out about it, I might not be bothered at all and definitely would be bothered a lot less than if they hadn't done so.

Just because I'm not continuing a story here doesn't mean I'm not doing it at all. I wrote one story here and turned it into two NaNoWriMo projects I might actually try to get published. In the case where I'm inactive for years and someone wants to continue my story, doing so might turn out to be harmless, but I'm still glad that's not the assumption.

As you well should. It is not a theft because there exists no ownership; the concept of “intellectual property” is a relatively recent legal fiction that doesn’t rhyme with how people interacted with culture for many centuries prior to its invention.

This is dubious. The Berne Convention was in 1886, and that's an international convention; England and the USA had something like copyright in the 18th century. That's older than the automobile. The automobile is valued despite its novelty because it's useful. Copyright law is useful too. It was screwed up by Disney and other megacorps in recent decades, but the basic concept of it is very solid.

 

[IWroteThis]

As you well should. It is not a theft because there exists no ownership; the concept of “intellectual property” is a relatively recent legal fiction that doesn’t rhyme with how people interacted with culture for many centuries prior to its invention.

Yes, there is ownership of the things you create. Copyrights, trademarks, and patents were specifically designed to protect the rights of ownership.

It’s especially spurious to invoke when even the main ‘benefit’ of IP — protecting author’s profits — doesn’t apply when there any pretense of making profit has already been relinquished by the virtue of having published the work for free.

As I mentioned before, there are people selling these "free" stories in different formats, along with edited versions and expanded versions. They also sell sequels, stories set in the same universe, and completely unrelated works that were never posted on Literotica. So, again, it can harm the original author when others are allowed to insert themselves into that market.

 

[Djmac1031]

I do wish that the site would exercise some control over stories that have sat stagnant and incomplete for years. Delete them and let the writer resubmit

Respectfully, I disagree. Literotica has control over it's site, yes. But that doesn't give them the right to strong arm an author into completing something. The author wrote what they wrote. As long as it doesn't break the terms of the site, it should remain. Who gets to make the call that the story is "unfinished?" The site owners? Readers?

No I think this is a terrible idea that opens up a can of worms over who has final say about what constitutes a "finished story" here, when the reality is only the author should have that say.

 

[Kelliezgirl]

This is dubious. The Berne Convention was in 1886, and that's an international convention; England and the USA had something like copyright in the 18th century. That's older than the automobile. The automobile is valued despite its novelty because it's useful. Copyright law is useful too. It was screwed up by Disney and other megacorps in recent decades, but the basic concept of it is very solid.

It isn't dubious at all, art, be it stories, music, orpaintings have existed for thousands of years. That makes 1886 relatively recent.

 

[Voboy]

Died, I think, for all of them, and their literary estates paid people to continue the work, often by working on unpublished or unfinished manuscripts. Not quite the same thing as someone picking up a series and running with it while the original author's still going, I don't think.

This. And I think, in the case of Dune, even I could have done a more Frank-worthy job than Brian did. But if I'd just gone ahead, written down some Dune stuff, and then published it? Guess how fast Frank's estate would have come after me?

These were legit continuations because the continuation-ers obtained permission from the copyright holder before they published. The Lit analog is asking (and, importantly, gaining) the original writer's permission. I support both those ideas.

 

[BobbyBrandt]

Respectfully, I disagree. Literotica has control over it's site, yes. But that doesn't give them the right to strong arm an author into completing something. The author wrote what they wrote. As long as it doesn't break the terms of the site, it should remain. Who gets to make the call that the story is "unfinished?" The site owners? Readers?

No I think this is a terrible idea that opens up a can of worms over who has final say about what constitutes a "finished story" here, when the reality is only the author should have that say.

You are free to disagree.

That doesn't change my opinion that the site cheapens itself and the experience of its readers by allowing OBVIOUSLY incomplete works to stagnate, take up space, and frustrate its client base. Any competent person with third-grade reading comprehension could identify the stories that I am referring to.

There are many story sites that regulate incomplete works and they survive just fine. It fosters a better experience for readers and greater discipline from writers. Win/Win.