Digital Copyright Law: What Authors Want….

With the second movie in the Twilight series (New Moon) imminently about to appear on the big screen, I found myself getting interested in this pop culture phenomenon, particularly as I strolled around a bookstore this afternoon and found just about every magazine cover devoted to the exploits of the teenage vampires and werewolves in the small town of Forks.

One part of the Twilight story, or at least the story of its author Stephenie Meyer, provides an interesting commentary on copyright law in the digital age.  The original Twilight novel is told from the perspective of its young heroine, Bella Swan, as are the next three novels in the series.  Bella famously falls for a young vampire called Edward and their forbidden and dangerous love is the focus of the narrative.  However, at some point during the writing process, the author became interested in how the story might look if she told it from Edward’s point of view.  She thus started a project entitled Midnight Sun – a retelling of the first book from the vampire’s perspective.

As she was working on Midnight Sun, production was on full swing on the first of the movies.  She released some draft chapters of the book to members of the production team (and possibly other people as well) to assist with character development on the Twilight movie.  Unfortunately, as seems to be the case with any work now made available in a digital format, the uncompleted draft of Midnight Sun was eventually released virally over the Internet.

Ms Meyer’s reaction to the unauthorized release and the storm of online commentary that followed is very instructive for those interested in finding out what many authors really want from digital copyright law.  And, perhaps surprisingly for some, it isn’t all about the money.  Ms Meyer’s response to the unauthorized release is described on her website.  And out of deference to her concerns about loss of control of her own material online, I won’t cut and paste slabs of her comments here.

What is interesting about her reaction, though, is she seems more concerned about loss of control of the fruits of her artistic labors, and feels that the unauthorized posting was an intrusion into her creative process that has so significantly interfered with her process that she may now be unable to finish the book.  While she would undoubtedly have made lots of money out of completing and publishing the book, this is likely a secondary concern given how financially successful she has been with the first four books, a new book series she has started, and the films of the books.  So are we seeing a significant divide here in practice between a successful author’s interests and potentially the commercial interests of her publishers?  While publishers would presumably be more concerned with money, the author here is more concerned with artistic integrity.  Does this suggest we need to more closely revisit the question of moral rights in the United States?  Might we have lost track of what authors are really concerned about?

It’s also interesting that this is effectively a case of a derivative work created by the author herself.  What would happen if fans disappointed at Ms Meyer’s decision to put the book on hold decide to create their own derivative works, telling the story from Edward’s (and perhaps other character’s) perspectives?  How would this fare under copyright law?  (And think of fair use factor 4 – would the fans be infringing into a potential market of the author if, say, she decided that she would NEVER complete the works, and if the fans did not themselves make any profits from making up the derivative storylines.)

7 thoughts on “Digital Copyright Law: What Authors Want….

  1. On the copyright side, her point is (understandably) ambiguous. She claims copyright in the book, but she says that the book was not finished, and it wasn’t finished in some meaningful ways. If it wasn’t finished, then it may not have risen to the status of “work of authorship” (there are echoes here of the MassMOCA/Christoph Buchel dispute, and copyright law may have nothing to say here. Copyright protects partially completed works, but it doesn’t protect every keystroke.)

    As with Buchel, the episode seems to evoke trademark law law and/or trade secret law more than it does copyright law:

    In a trademark sense, she is being held as the source of a product that she disclaims, and for that both she and her fans deserve the sympathy and perhaps a trademark remedy, Dastar notwithstanding (though a remedy may not be practical).

    Does the trade secret idea cut the other way? In a trade secret sense, she failed to take reasonable precautions to maintain the secrecy of the work; secrecy was key to maintaining the value of the ultimate product; and so on. You snooze, you lose, in a trade secret world; you can’t play Renault, gambling with the work then claiming to be shocked when you are betrayed. The parallel isn’t perfect, but the atmospherics work.

  2. Hi Jacqui —

    I find this really interesting too. It does really challenge, for me, the notion that authors are primarily creating for economic returns — I think we do our students a disservice when we fail to point out the complicated interests that authors have in their expressive work.

    Re the fan stories, there are already, no doubt, tons of fanfic versions of Twilight told from multiple POV. The interesting thing about this version is that it is both canonical (due to the authorial origin) and non-canonical (because she disclaims it). But while a moral rights system might support that sort of power on the part of authors, it may turn out, for various reasons, that authors are not able to make that call. See, e.g., Kafka & many others.

  3. Mike and Greg: Thanks for those helpful and interesting comments. Wondering if some variation of this might make a good exam problem someday!

  4. Thanks, Rebecca. Do you have any information as to how Stephenie Meyer feels about the fan fiction? I would assume her views about other people writing their own stories based on her characters likely differ from her concerns/ sense of violation she felt about unauthorized sharing of her own work.

  5. I don’t know what Meyer thinks; I wouldn’t consider her opinion relevant any more than I’d consider her opinion of bad reviews and their effect on her productivity relevant, though of course anyone is entitled to take the author’s feelings on either into account.

  6. But isn’t the question “relevant to what”? I’m trying to get my mind around what authors want from the copyright system, and Meyer’s views on her own work versus fan fiction of others may tell us something about how at least one author distinguishes copyright in her own creations versus rights that may exist in derivative works. For example, if she doesn’t mind the derivative works, but only objects to unauthorized copies of what Greg calls the “canonical text”, then mightn’t that tell us something about the relationship between reproduction rights and derivative works rights more generally (at least if Meyer’s views are in any way representative of those of other authors)? Deven has made some interesting comments about how violated Meyer feels about the unauthorized copy of her own work, and I found it interesting that she didn’t make any comments of this ilk about things that are clearly derivative works, given how open she is about communicating with fans on her website.

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