Last fall, when the William Faulkner Estate sued Sony Pictures, the Washington Post, and Northrop Grumman for their uses of short Faulkner quotes and paraphrases, I summed up my thoughts on the outrageous litigation by quoting Kurt Vonnegut: “Literature should not disappear up its own asshole, so to speak.”*
As I said in my first post on the subject, When Someone Quotes You, Say “Thank You,” Not “F-You,” Vonnegut uttered those memorable words in a different context, but the sentiment is equally applicable to the short-sighted actions of authors and their estates aimed at limiting others from using their copyrighted material in a creative manner. In particular, I explained that “[The Faulkner Estate's] litigious nature could chill future references to the author, thus ending the free advertising [that comes with quotations] and possibly hastening the speed with which the public will lose interest in his work.”
Thankfully, the Faulkner Estate lost its case at the trial court level last month, and, if I were its attorney, I would recommend they forego an appeal to the 5th Circuit and drum up interest in Faulkner’s work in other ways. To stay in the limelight, a goal that is clearly important to them, they should consider taking a page out of Kurt Vonnegut’s estate’s current playbook.
Vonnegut’s estate has been criticized in the past for limiting access to the late author’s words, but it seems to be making an attempt not to “disappear up its own a-hole” by entering into an agreement with Amazon to legalize the publication of fan fiction based on Vonnegut’s novels.
For those who don’t know, fan fiction includes stories written by fans of an original work that use characters, plot devices, and sometimes the setting from the original work in a new way. Such derivative works often amount to copyright infringement unless the fan fiction writer is able to establish a defense, such as by arguing that the original author has given his or her implied consent (by, for example, allowing fan fiction to go unchecked long after learning about it) or by arguing that the fan fiction is Fair Use. A fan fiction author is more likely to succeed under Fair Use if, when assessing the purpose and character of the use, the derivative work is educational, a parody, and/or, perhaps most importantly, non-commercial. So, historically, a fan fiction author’s ability to make money off of his or her derivative creations has been limited — as soon as they try to commercialize the work, they can expect a ‘cease and desist’ letter from the owner of the original work’s copyright.
Amazon’s Kindle Worlds, however, legalizes fan fiction by obtaining licenses from the holders of copyrights to allow fan fiction writers to publish derivative works while getting paid for it. Fan fiction has always existed in some form, but perhaps the allure of receiving royalties will encourage more writers to create derivative works, and perhaps even encourage publishers to assist writers by providing editing or marketing. So far, Kindle Worlds has obtained licenses from a small number of copyright holders, and now the list includes Kurt Vonnegut’s estate.
So, unlike Faulkner’s estate, Vonnegut’s estate has decided to use copyright law to its advantage in a way that doesn’t ruin Fair Use for the rest of us. This move opens up my favorite novel, Slaughterhouse-Five, to the creative minds of fan fiction writers, and while I’m not inclined to participate as a writer in Kindle Worlds, I look forward to seeing what others create.
In the past, I’ve wondered whether certain examples of derivative works are homages to the original work or merely rip-offs, and I’ve heard others claim that fan fiction “dilutes” the original work, but I think none of these criticisms outweigh the potential benefits of derivative works to the original author or his/her estate. For example, when I read Margot Livesey’s shallow reiteration of Charlotte Brontë’s Jane Eyre (which is no longer under copyright and so presents none of the legal challenges of typical fan fiction), it only made me long to read the original again, not think less of it. Overall, references through quotes, paraphrases, and even through fan fiction keep old books alive, something Faulkner’s estate doesn’t understand.
Faulkner has been dead for more than fifty years and Vonnegut hasn’t been with us for six, making it impossible for these authors to engage with readers the way modern authors do today. They can’t tweet, they can’t blog, and they certainly can’t make personal appearances on The Daily Show or Colbert Report or at anyone’s local bookshop (except through posthumous accounts and impersonators). So, to remain relevant by connecting with a new generation of readers, these deceased authors need new authors to reference them, and participation in Kindle Worlds may be one way to achieve this type of recognition while still protecting their copyright.
Even Kurt Vonnegut could use the publicity. While the recently published Kurt Vonnegut: Letters (2012) asserts that “[f]rom all indications, there will be many more ‘years of Vonnegut,’” anecdotal evidence suggests otherwise. As I discussed in a post back in April, Vonnegut’s Literary Reputation: Evidence that American Culture Must be in Decline, I was shocked to learn that my Dad’s graduate-level filmmaking students hadn’t even heard of Vonnegut. I concluded, melodramatically:
The minute Kurt Vonnegut’s books lose their place in literature is the moment I will feel like an old woman and, dare I say it, I may well find myself starting a diatribe with, ‘Kids these days…’ Let’s hope it never comes to that.
And maybe now it won’t. Maybe my Dad’s next class of students will learn about Kurt Vonnegut after stumbling upon derivatives like Dog’s Cradle and Zombie Slaughterhouse. We’ll see.