OK, this is scary!

[dreamflower]

Thanks to the weekly links from fanthropology, I was made aware of THIS!

Maybe someone can explain just why this particular story is a threat to the Tolkien Estate all of a sudden? They've been ignoring fanfic for decades...

Comments

[rabidsamfan.livejournal.com]

They'll have some problems if they take it to court though. Aren't there quotes from Tolkien where he enthuses about the idea of people expanding on his mythos?

[dreamflower]

Yes, there are. I'm not sure of how much legal impact those statements would have, though.

[labourslamp.livejournal.com]

I've known about this fic for a while; it was a cult hit in Russia and passed around, in-text, illegally. I think the issue here is the publishing in tangible form, which involves profit: "Though The Last Ring-Bearer is well-known among Russian fantasy fans, translator Yisroel Markov says publishing houses have not been prepared to publish an English translation because of legal concerns."

And what's more, the Estate isn't in the article at all as an actor, only as the copyright holder. The only person who's criticizing it as copyright infringement is this Society of Authors guy, who isn't related to the Estate. Heck, the publisher said they hadn't even been approached! So this is a matter of the publishing industry self-enforcing, and has nothing to do with the Estate except for the fact that they have not authorized published fan fiction.

If you want a real statement on the Estate's policy on fan fiction, look no farther than their site: Can I / someone else write / complete / develop my / their own version of one of these unfinished tales ? (or any others)
The simple answer is NO.
You are of course free to do whatever you like for your own private enjoyment, but there is no question of any commercial exploitation of this form of "fan-fiction".

We are free to do what we like for our own private enjoyment, we just can't make money off of it. I don't see why we should be frightened when the Estate's name gets pulled into someone else's assessment, and they're still following what they've always followed.

[dreamflower]

That makes me feel a bit better. It's just I've literally had nightmares of waking up and finding that all the archives have been shut down and all fanfic removed from the 'net.

[labourslamp.livejournal.com]

And if that ever happens, we'll use Wayback machine and spare hard drives, and create our own private archives, and use email and other sundries to spread our fan fic to each other. It won't be nearly as good as the system we have now, especially when attracting newcomers, but there are limits to what the law can do, realistically or not. Even Weird Al can perform unauthorized parodies, as long as he does them live.

Besides, I think the copyright police have much bigger fish to fry right now--bootlegs, both of audiovisual and text, not to mention copyrighted and patented code.

[lindahoyland.livejournal.com]

I have that nightmare too.One reason I imported my stories from ff.net to "An Archive of our Own" is that promise to fight to protect our right to tell stories.

[surgicalsteel.livejournal.com]

It doesn't look to me like the Estate's actually gotten into this particular fray - just this dude from the Society of Authors. I think if the guy who's translated it from Russian to English simply put it up on an archive or other website with the standard 'I'm not making any money from this' warning, the Estate isn't likely to care - they only seem to care when people might be making money off of it. Small wonder no publisher would take it - it's a money-losing proposition for them. If they publish and distribute it for free, they've lost that money - and if the author/translator pay a publisher to even just do the printing, then the Estate can come after them for making money off of the work.

[dreamflower]

I see. I do know that the laws vary from country to country as well, making things complicated in that way, too!

[surgicalsteel.livejournal.com]

Doing a bit of Googling around, it also looks as if part of the problem is that this book was published for profit in Russia without permission from the Tolkien Estate. This apparently doesn't violate Russian copyright law, but it does violate copyright law in most English-speaking countries - so even if it's made available for free in English, the Estate could potentially argue that the copyright violation has already occurred.

And the few excerpts I found? Weren't anything particularly special. Either it's a poor translation or it's just not all that great.

[ansostuff.livejournal.com]

Hm... Yeah, why the panic?

[dreamflower]

*shrug* I'm not sure, considering that it says this particular story's been around since '99.

[rhapsody11.livejournal.com]

I think the publisher is behind them because well, there might be or is a legal translation of LotR on the market. This author -obviously - violated fair use big time even if you write it from a different viewpoint. Even if the estate has ignore innocent works by fans that covered a fraction of a whole verse, this person offered the work for download, has not sought permission by the estate to do this (as stated in the article).

He said: "If the book's available in English without a licence from the copyright owner, that's copyright infringement."

That is why we have disclaimers.

[dreamflower]

I'm still not sure I get it, but I see now it's not just been the download thing, but also actual published editions and such.

[rhapsody11.livejournal.com]

See it this way: you play in the sandbox, make no money on it and your work might encourage others to buy books. Publisher might go like hrmm, but it will incluence the sales in a positive way (people might want to buy the history of the hobbit based on your story!). A fannish writer will never take a story about Boromir to let's say Random House to have it published.

There are two things that caught my eye: This book however is offered as a somesort of replacement for the LoftR, which might impact the sales of the latter because if you'd read that Russian book, you won't have to buy LotR anymore). Secondly, this line is very crucial:
Though The Last Ring-Bearer is well-known among Russian fantasy fans, translator Yisroel Markov says publishing houses have not been prepared to publish an English translation because of legal concerns.

Harper Collins owns the publishers rights on what Tolkien invented/wrote ect ect, to take his creations (no matter if it might be transformative or not) and to sell that book for commercial purposes to other publishers is a violation of Harper Collin's sole & exclusive rights and should be respected thusly whether you're in Russia or not. If you create a transformative work based on Tolkien's creations, Harper Collins still maintains the possible right to publish this transformative work. Am I making more sense now?

[elasg.livejournal.com]

What are they planning to do about the hundreds of thousands of fanfic books that are already out there? Are there plans to sue all of us? *shakes head*

[dreamflower]

I don't know. I wonder what the OTW's take on this one would be.

[pandemonium-213.livejournal.com]

I came across the article via a post on TORn, which I might just have commented on. ;^) [Disclaimer -- I think I am overestimating my # of patents and patent applications, which is 11 and 2, respectively. I can never remember the exact number]. Mine was a leading question, and it brought out some vexing responses. Now I'm going to get snarky here. Voronwë the Faithful (otherwise known as Doug Kane, author of Arda Reconstructed) had immediately squawked about the OP linking to "The Last Ring-Bearer" because it violated copyright. Sure enough, the TORn admins removed it.

When that happened, a lightbulb went off in my ol' noggin (it happens now and again :^D), and I recalled the panel on intellectual property and derivative works that I attended while at the Arisia Con last month. Someone asked the panel of attorneys and law students if fan art (as in drawings) is considered derivative work and potentially an infringement of copyright. To a man, they said, yes, fan art is derivative work and is in violation. That is to say, it really isn't any different than fan fic. Yet TORn has a whole board for posting artwork, which arguably violates copyright!

The answers I received to my query were wholly unsatisfying. It's a matter of "respect?" Gimme a break. As Celeritas aptly quotes, the Tolkein Estate explicitly notes that non-commercial work is acceptable. What might be sticky is "your own private enjoyment." What exactly does that mean? Would an archive with a wide readership be considered "private?" That very tricksy phrase could be parsed and interpreted by attorneys to ill effect -- for us fans, that is.

The TORn discussion yanked my chains because I have read so many sneering comments about fan fiction on that site and yet fan art (the majority of which is not approved by the Tolkien Estate) gets a pass from them. The inconsistency drives me nuts. On the other hand, I certainly do NOT want to see that site shut down fan art. I just wish they'd see that fan fiction is simply a written form of the latter.

But The Last Ring-Bearer. Another one of the tests that was discussed at the IP and derivative works panel was the question of whether a derivative work would negatively impact sales of the copyrighted work. Because Yeskov is distributing the work, even if he is not asking for compensation, one might wonder if the attorneys for the Tolkien Estate could use that distribution as an argument, i.e., adversly affecting sales of the copyrighted work (HIGHLY unlikely that it would. Yeskov would have done better to keep his translation well under the radar.

I did catch an excerpt of the translated version. Color me unimpressed. Either it didn't translate well or Yeskov is not a particularly good writer.

[ramblin_rosie]

But wasn't there a recent ruling by some entity that matters--Copyright Office or Library of Congress, I think--that as long as it's *transformative* and not-for-profit, it's fair use? I remember it coming up in the context of fanvids, but I would think the same principle would apply to fanart and fic as well.
Not saying you're wrong about what you were told, only that the lawyers at the panel might have missed that ruling.

[pandemonium-213.livejournal.com]

No, they didn't miss it, and in fact, were well aware of the ruling. But what constitutes "fair use" is subject to legal interpretation. The lawyers on the panel pointed out that it's more restricted than a lot of us tend to think.

Copyright is really a legal morass. That's what I learned from the panel!

[ramblin_rosie]

I see. Thanks for clarifying!

[dreamflower]

I find the whole thing rather scary. But the reassurance of tolerance of the Estate on "non-commercial" and "private" creations makes me feel a bit better.

I agree there seems to be a double standard where art is concerned. And another double-standard, as I have gathered from various people, where fanvids are concerned.