One of the weirder bits of news sailing through the Internet this week is Amazon’s acquisition, from the Vonnegut Trust, of the right to publish fan-fiction based on the, uh, Kurt Vonnegut universe. (…) Setting aside the question of whether or not anyone will actually make use of these rights, though, the very fact that this kind of licensing is becoming standard practice should raise eyebrows. The Vampire Diaries, Gossip Girl: those are clearly commercial literary properties. They were designed for merchandising and licensing and spinoffs. Vonnegut: eh, not so much. And the thing is, literary novelists have a long tradition of being, ahem, “inspired” by each other’s work. (…) Do we want “serious writing” to be a place where people must license characters from each other? Does that do a disservice to the way in which literature is, for a lot of writers, an ongoing conversation with their predecessors? How would postmodernist novelists, for example, be curtailed by such rules, since they often incorporate commentary on the characters of others? Forcing everyone to get a license would send chills down the spine of any novelist thinking of writing, say, a feminist novel from the perspective of, say, Holden’s girlfriend Sally Hayes, not just anyone who wants to engineer a meeting between Holden Caulfield and Serena van der Woodsen. Michelle Dean, Why You Should Worry About Amazon Buying the Right to Publish Kurt Vonnegut Fan-Fiction
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PaidContent reports that in June this year, Amazon will be launching Kindle Worlds, a legal publishing platform for fanfic. According to Amazon’s announcement, Kindle Worlds will start out by allowing fanfic based on Gossip Girl, Pretty Little Liars, and The Vampire Diaries.
It’s not necessarily bad news that companies are trying to create options for “licensed” fanfic, and I’ll leave the in-depth analysis of the legal aspects of this to professionals. Legal issues aside, though, I certainly hope that Kindle Worlds won’t become a model for other attempts to legalize fanfic. This concept seems to repeat a lot of fan-unfriendly aspects of previous forays by companies into the weird world of fic monetization. Kindle Worlds would allow fic authors to sell works “without hassle”, as PaidContent says, but apparently also without many rights, and within the boundaries of extremely strict content guidelines.
The platform refers to fandoms as “Worlds”. Copyright holders can give Amazon Publishing a license to allow fic writers to upload stories about licensed media to Amazon Publishing, which will then offer the stories for sale. Since this is not a self-publishing platform, Amazon Publishing will be setting the prices:
The fan fiction authors get a royalty of 35 percent for works of at least 10,000 words, and a royalty of 20 percent on works between 5,000 and 10,000 words.
Amazon Publishing will set the price for Kindle Worlds stories. Most will be priced from $0.99 through $3.99.
Fic authors will get a monthly payout. Amazon will be paying an undisclosed amount of royalties to the copyright holders of the media the fics are based on, and presumably also keep an undisclosed amount of money for itself. In short, while fic writers will get some money, they have zero control over how much they might want to charge or how much of a cut they deserve, and no options to negotiate. Amazon can organize its business the way it pleases, of course. But this “you will take what we offer you or nothing” approach may offer a big clue to how Amazon believes the rights of all parties should be balanced out when fic writers and copyright holders try to share income from fanworks.
An ever-returning problem with “official” fanfic contests and corporate websites is that they tend do have content guidelines that are rather more restrictive than what many fans feel is sensible, and Kindle Worlds is no exception. The copyright holders who license their properties to Amazon to allow fanfic on Kindle Worlds will be deciding which content is allowed:
World Licensors have provided Content Guidelines for each World, and your work must follow these Content Guidelines. We strongly encourage you to read the Content Guidelines before you commit the time and effort to write.
It’s not immediately clear if this means that there will be different content guidelines for every fandom on top of the content guidelines that Amazon itself sets. But Amazon’s basic content guidelines are as follows:
Pornography: We don’t accept pornography or offensive depictions of graphic sexual acts.
Offensive Content: We don’t accept offensive content, including but not limited to racial slurs, excessively graphic or violent material, or excessive use of foul language.
Illegal and Infringing Content: We take violations of laws and proprietary rights very seriously. It is the authors’ responsibility to ensure that their content doesn’t violate laws or copyright, trademark, privacy, publicity, or other rights.
Poor Customer Experience: We don’t accept books that provide a poor customer experience. Examples include poorly formatted books and books with misleading titles, cover art, or product descriptions. We reserve the right to determine whether content provides a poor customer experience.
Excessive Use of Brands: We don’t accept the excessive use of brand names or the inclusion of brand names for paid advertising or promotion.
Crossover: No crossovers from other Worlds are permitted, meaning your work may not include elements of any copyright-protected book, movie, or other property outside of the elements of this World.
This is rather incredibly restrictive, but I can’t say I’m surprised. In other fanfic contests and corporate fic-hosting endeavors, media companies have also set content guidelines that prohibit sexual content or other hard-to-market things. (Also check out this thesis by Suzanne Scott and this article by Roberta Pearson for more discussion on this.) Last year’s MTV-organized Teen Wolf fanfic contest caused some amazement precisely because it wasn’t explicitly hostile to slash or porn.
Needless to say, these guidelines will be excluding a massive number of authors from legally monetizing their fic – from those who write smut to those who like to write some violence, have their characters curse, or just don’t manage to provide a good “customer experience”. I’m curious what Amazon will make of non-sexually explicit slash.
Some may also consider it an issue that there will apparently be DRM on the stories to prevent them from being read on non-Kindle devices and programs:
Stories will be available in digital format exclusively on Amazon.com, Kindle devices, iOS, Android, and PC/Mac via our Kindle Free Reading apps. We hope to offer additional formats in the future.
And then we come to where the copyright on the submitted stories will go:
Amazon Publishing will acquire all rights to your new stories, including global publication rights, for the term of copyright. (…) You will own the copyright to the original, copyrightable elements (such as characters, scenes, and events) that you create and include in your work, and the World Licensor will retain the copyright to all the original elements of the World. When you submit your story in a World, you are granting Amazon Publishing an exclusive license to the story and all the original elements you include in that story. This means that your story and all the new elements must stay within the applicable World. We will allow Kindle Worlds authors to build on each other’s ideas and elements. We will also give the World Licensor a license to use your new elements and incorporate them into other works without further compensation to you.
Exactly what this implies is best explained by a legal professional, and I have no doubt that the OTW’s lawyers will have some advice ready soon, as they did with earlier corporate attempts to solicit fanworks. However, it certainly sounds like Amazon acquires all publication rights and will give the copyright owner a license to use a fan’s contributions without any compensation in any further commercial media they publish. (Whether Amazon gets any additional income from this licensing to the copyright holders isn’t mentioned either.) I’m curious about whether, for instance, this licensing agreement with Amazon would permit a fic writer to still offer her story for free on another fic archive.
Regardless – since claiming all rights to fanworks is another thing that many “official” fanwork-soliciting endeavors from Syfy with Battlestar Galactica to the fic contests planned by the infamous Fanlib have been lambasted for, I’m not sure if this will go down well anywhere.
All this doesn’t sound like the Kindle Worlds was designed to take fans’ rights and concerns into account. The list that Amazon gives of advantages that Kindle Worlds offers to fic writers is tellingly meaningless:
Writers benefit from Kindle Worlds because:
- Amazon Publishing has already secured the necessary licenses to write about any Kindle World
- They can earn royalties writing about established characters and universes
- The Kindle Worlds self-service submission platform is easy to use
The first point seems to imply that fic writers need a license to be allowed to write fic at all, which is a contested idea at the very least; many legal scholars writing about fanworks would probably argue differently. The second point, earning money with fic, may be considered a good thing by some fic authors; I’ve argued in favor of fic writers considering commodification options, as have others, so I’d personally say that this can indeed be a legitimate advantage – although as mentioned earlier, the fact that fan writers would have no control whatsoever over pricing makes this a qualified “okay then” indeed. The third point, that Kindle Worlds is easy to use, is just silly. Plenty of websites where people can publish fic are easy to use. I get the feeling that they just needed a third point in there to match the three-point list of advantages for copyright holders, and couldn’t think of anything.
Again, I’m not against the idea of “licensed” fic in and of itself, and those who want to agree to Amazon’s terms certainly have the right to do so. However, something like Kindle Worlds can be only one option among many for licensing fic, and it definitely shouldn’t be a model for other “solutions” to the legal uncertainties surrounding fanworks. The only option for publishing fic legally can’t be a platform that takes or licenses away many rights, doesn’t give fic authors the option to set prices, and excludes large numbers of fans with its content guidelines. Hopefully, alternatives that strike a better balance between the rights of fans and copyright holders will emerge soon to counter this.
I’d like to draw your attention back to an image I had used in another context, namely about boys/girls and the assumptions about/representations of in manga, and talk with y’all a little about Zolo. Now, you have to bear in mind that my first encounter with One Piece was a non-licensed translation dub of the TV anime. After that, I began to regularly follow the series while living in Japan, so I mostly read it in the weekly Shōnen Jump‘s I would dig out of garbage cans and recycle piles on Tuesdays (for the trash cans) and Wednesdays (for the recycling piles). At no point was it ever unclear to me that ゾロ was a take on the Johnston McCulley character Don Diego de la Vega, aka Zorro. I was a huge fan of the 50s Zorro television show that ran on syndicated TV when I was growing up. There was no mistaking: ゾロ was Zorro.
Fast forward a few years, and I am picking out the books for my “What is Manga?” class, for which I decide to use Oda’s One Piece as representative of the shōnen demographic. A few days before class, I sat down to read the licensed translation, so as to refresh my memory, and I come across the follow anachronism: Zolo. After a few minutes of obligatory “wat”s, I finally came around and tried to think why it was they would have done this. When One Piece was scanlated, the name was at least translated as Zoro, so the similarity would be apparent. Was this an attempt to bring back Rolo’s, which, while delicious, I don’t see flying off shelves nowadays awash in candies more flashy marketing than chocolate and caramel? It was actually just before–or perhaps even in the midst of–the class in which we discussed One Piece that I realized there was a very simple reason why you would translate ゾロ as Zolo: licensing. Zorro, like Mickey and Donald and Superman and Kitty-chan, is a diligently guarded media commodity, so, while one might conceivably be able to get away with aping Zorro in Japan, it would be much harder to get away with this in the US and the larger English language market, where Zorro media are still being produced to this day.
I’m looking for examples of discussions on/proposals for special copyright licenses that would cover the creation of fanworks. There have been quite a few of these, though I don’t remember most of them. For instance, there’s the CC-based fanwork license proposed by mangaka Ken Akamatsu and manga publisher Kodansha . There’s also existing licenses, like whatever Kadokawa Publishing is doing exactly, or Jim Butcher’s fic license, which is apparently kind of dubious . There’s been a lot of discussion on making better licenses for derivative works in general in academic and copyright reform circles, but although many of those could apply to fanworks, very few of them seem to be considering the particular characteristics of things like fic. They also seem to be mostly about regulating the relationship between derivative works, not about regulating the positions of derivative works vs. other derivative works – things like whether or not the writer of a fic gives blanket permission to write sequels, make podfics etc. I’m looking for discussions/proposals from anywhere – fandom, industry, academia, and so on. Thank you very much!  hilarious gtranslated page at translate.google.com/translate?hl=en&sl=ja&tl=en&prev=_dd&u=http%3A%2F%2Fwww.itmedia.co.jp%2Fnews%2Farticles%2F1212%2F13%2Fnews055.html  www.jim-butcher.com/posts/2010/new-fanfiction-policy  Discussions of Butcher’s policy at fail-fandomanon.livejournal.com/30790.html?thread=139385158#t139385158 Brought on by discussion at elf.dreamwidth.org/673250.html?thread=7983074#cmt7983074
Thoughtful critique of our “no quoting fannish meta without permission” policy, and discussion in the comments about how to make it easier for fans to indicate that what sort of re-use of their work they’re okay with (or not).
We’ve already seen a similar frustration brew in the context of “fan fiction,” particularly around the Star Wars franchise. As with the Harry Potter story, Lucasfilm learned early on that there were millions who wanted to build upon Star Wars, and few who thought themselves restricted by the rules of copyright. Like Warner, Lucasfilm recognized that these fans could provide real value to the franchise. So under the banner of encouraging this fan culture, Lucasfilm offered free Web space to anyone wanting to set up a fan home page.
But the fine print in this offer struck many as unfair. The contract read:
“The creation of derivative works based on or derived from the Star Wars Properties, including, but not limited to, products, services, fonts, icons, link buttons, wallpaper, desktop themes, online postcards and greeting cards and unlicensed merchandise (whether sold, bartered or given away) is expressly prohibited. If despite these Terms of Service you do create any derivative works based on or derived from the Star Wars Properties, such derivative works shall be deemed and shall remain the property of Lucasfilm Ltd. in perpetuity.”
Translation: “Work hard here, Star Wars fans, to make our franchise flourish, but don’t expect that anything you make is actually yours. You, Star Wars fans, are our sharecroppers.”
But though the objective of profit is not a problem, the manner in which that profit is secured can be. The respect, or lack of respect, demonstrated by the terms under which the remix gets made says something to the remixer about how his work is valued. So again, when Lucas claims all right to profit from a remix, or when he claims a perpetual right to profit from stuff mixed with a remix, he expresses a view about his creativity versus theirs: about which is more important, about which deserves respect.