I am, generally speaking, a large fan of intellectual property. However, unlike Merges, my reasoning for favoring strong IP laws had always been almost purely utilitarian. While I recognized that IP creators deserve to be rewarded for their work, I never thought about a moral justification focusing on the creator instead of society as a whole. Thinking about IP rights in this sense, provides a new argument against those that favor the "remixing" culture and spread of fan fiction. This view, similar to the claim that "information wants to be free" has several noted supporters including Lawrence Lessig and is what I take to be behind Asher's proposal if people stop copyrighting everything there will be "better, faster, more meaningful artistic . . . productions." Not only do I feel that in many cases this statement is false, I also feel that it in some situations it should not matter if it is true.
The situation I am going to focus on is derivate works that use characters created by another author. The way I understand the current debate, many feel that amateur created works like those posted on YouTube or written by fans online are somehow superior to the original creator's vision or at the least are a net positive for society. In my opinion this is plainly wrong. A huge benefit of letting the original author decide the story that he wants to tell is the resulting continuity and the rich canon that can develop. For example, if others had been allowed to write stories using characters from the Hobbit when Tolkien was still writing the Lord of the Rings, it is possible that another author could have beaten him to print with an unofficial sequel and essentially hijacked Tolkien's work. Middle Earth would without a doubt look very different. Even if one somehow thinks this would have been a better outcome, if we place the emphasis on the original creator, as Merges suggests, we should recognize Tolkien's moral right to determine how his work evolves. He is the one who brought the idea into existence and should be allowed to see it through to his final vision. This same logic applies today with popular works like Harry Potter and Star Wars. That's not to say other authors can't write stories using popular characters (sometimes these secondary authors actually have better ideas than the original authors). However, these authors should have to receive permission from the original creators to make sure they are not somehow interfering with the story he wishes to tell. This is what is currently done with the Star Wars universe, and not only guarantees that Lucas's vision is respected, but ensures that the works do not contradict each other. While some franchises, such as comic books, have dealt the problem of multiple authors using the same characters by creating multiple universes; it should really be up to the original author if he wants his vision to go down that path and create the additional consumer confusion.
While one might currently be able to tell the official derivate works from the fake, as authors begin to publish almost exclusively to the internet, and better technology allows amateur filmmakers to create Hollywood quality movies which are then posted to YouTube, there is likely to be consumer confusion about what is the official canon. One can already see this happening in China where unofficial sequels in the Harry Potter series are being published, sometimes by legitimate publishing companies.
Finally, recognizing an author's rights in his derivate works does not mean that authors who want to use already popular characters are without material. Many characters past their copyright can be used, for example see Pride and Prejudice and Zombies. In addition, fair use is broad enough to cover minuscule copying and parodies.
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