11There's this town. A small, quaint town surrounded entirely by mountains. Life in this town runs just about as normally in any other town; there are businesses both big and small, corporate and locally owned, and people of every shape, color and size. But what if, the people living in this town, had no idea that the #1 employer of their city, was engineering biomedical nightmares for the black market, and putting them all in danger? And what if one of their experiments went horribly wrong? Who would save them all before it was too late?
Sound like a good piece of original fiction? Sounds a bit like Resident Evil to me.
How about this instead…
Welcome to the past, the far and distant past; a past so long ago that they were technologically beyond us, but in the end, that was their downfall. A dark power is taking control, destroying everything in their path; however it was not always like that. There used to be peace, a certain order to things, but this dark entity soon destroyed that order and sent the only people who could stop them into exile. But there is a boy, a boy just coming into his own, and this boy has the power to keep this dark lord and his minions from destroying life as they know it. But before he can save them, he must truly learn how to control what it is that makes him the hero he is bound to be.
Now that sounds like a very interesting piece of original fiction. I mean, you would read it, wouldn't you? It seems very captivating. Wait, no…shit…this is exactly like Star Wars.
I think I've got it this time.
In the world of witches, warlocks, and other magical creatures, everyone has lived in harmony for many years. In fact, their lives are very much like ours, if you don't put too much emphasis on the use of magic and strange creatures. They wake up, they go to work, they go to school, and they go to war. A war has always beenraging in this world because ofone dark warlock and his minions, and surprisingly enough it is not the order of the world they wish to destroy, but merely the fate of one family. This family was the only family ever able to stop this dark lord in the past. How does he do this, you ask? He kidnaps this family's only son, and it is up to the parents to save him before it's too late.
As much as I'd like to write that story, I have a feeling someone here would say it's too Harry Potter to be original fiction.
Users of FictionPress have began a battle with other users of FictionPress over what qualifies and separates original fiction from that of fan fiction and therefore dictating what a user can post on this site. They have been using the ToS of FictionPress as a supporting argument, and I feel, subsequently giving quality authors a hard time about works that, in all truth, under law of the United States Government, qualify as original fiction. Ergo, I feel the need to prove to you all, that you are judging improperly, and that maybe after you realize the difference between fan and original fiction as stated by a law that actually is important, and see how it still qualifies under the law of the ToS here, maybe I can put an end to this fight.
Now my last argument was received rather poorly, however, if you haven't picked up on my point yet this time, all of the above story scenarios are, believe it or not, 100-percent original fiction, thanks to a wonderful thing called public domain, as well as many other important terms. Now, if you don't know what I'm referencing here, let me define it for you. Courtesy of .gov, I bring you the following tidbits of enlightening information:
(All information below is taken from .gov. The information from the aforementioned site was adapted and excerpted with permission from McCarthy's Desk Encyclopedia of Intellectual Property, Second Edition, written by J. Thomas McCarthy. Copyright ©1996 by The Bureau of National Affairs, Inc., Washington, D.C. 20037. For BNA Books publications call toll free 1-800-960-1220.)
PUBLIC DOMAIN (general intellectual property) - The status of an invention, creative work, commercial symbol, or any other creation that is not protected by some form of intellectual property. Items that have been determined to be in the public domain are available for copying and use by anyone. The copying of such items is not only tolerated but encouraged as part of the competitive process. (See COPYING, INTELLECTUAL PROPERTY.)
Now, after reading that, think back to how many television shows, movies, books, and even street performers such as comedians and magicians have used brief references from other previously copyrighted material in their acts, etc. For example, how many different instances of jokes on lightsaber battles,or impressions ofmen with helmets that make them breathe funny have been in our media today? Let alone the mutilation of the phrase " (your name here)...I am your father". Now of course, I won't say that at least 50 of them have been ok'd by LucasFilms Ltd., however there are just as many out there that haven't, and nothing has been done, because a lot of what makes Star Wars, Star Wars, is in the public domain. Now, if those people are making money off of it, and George Lucas isn't doing anything about it, do you honestly think he cares about Raptors story at all?
Moving on…
If someone on FictionPress decides to write a story, loosely based off a previously copyrighted scenario (such as my many examples at the beginning of this essay), there are two distinct possibilities that can occur. They will have either created a fanfiction, or a derivative work…
DERIVATIVE WORK (copyright) -A work based on a preexisting work that is changed, condensed, or embellished in some way.
Now, according to the United States Government, there is a significant difference between a derivative work, and a direct copyright infringement, which, in a sense, every fanfiction actually is an acceptable form of. However, those stories, on this website, that use similarities from other preexisting stories, but do not use the same characters, settings, or the like, should not then be considered fanfiction. They qualify, by the law of the land, as opposed to the ever so important law of fictionpress, as a derivative work, and nowhere in the ToS on this website does it say those are disallowed.
Moving on…
IDEA-EXPRESSION DICHOTOMY (copyright) -A fundamental rule of law that copyright does not protect an idea: copyright protects only specific expressions of an idea.
This is a pretty powerful part of my argument. Though I realize how much you all hate me for this, I have to cite an example to prove this part of my argument, and of course, for the most of you that are going to read this essay, I figure I should cite the story we have all seemed to get quite heated over…Star Wars: Reality by Raptor7435. According to this fundamental rule, copyright laws do not protect George Lucas's idea of Star Wars as a whole. The only things they do protect are his six movies, as individual expressions of the general idea we will categorize as "Star Wars". Therefore, since Raptor's story is not a copy of any of those six movies, he is not technically infringing on an existing copyright, he has simply created a derivative work based off a non-copyrighted idea.
Now you are probably arguing, though, that by using the title Star Wars in his story, that that alone is a copyright infringement. That is a good point, however read below…
SECONDARY MEANING (trademark) -A meaning for a trademark or service mark that customers associate with a particular brand of products or services. For trade symbols that are not inherently distinctive, distinctiveness must be acquired in order to be protected by a trademark or service mark. This acquired distinctiveness is known as "secondary meaning" because it is acquired second in time to the primary meaning of a word. A word such as "best" for milk is regarded as descriptive and not inherently distinctive. The primary meaning is that milk thus described is purported to be the best. To achieve exclusive trademark rights for a product called "Best Milk," a seller using this word must use it so that it achieves a secondary meaning denoting that all milk marked "best" comes from a single commercial source.
Therefore, the use of the words "Star Wars", in Raptor's title, would purport that his story is a direct infringement of the Star Wars Universe created by LucasFilms Ltd. However, the final word of his title "Reality", along with his disclaimer, and the entire rest of his story, supply the secondary meaning which turns it into a derivative work, under protection of the idea-expression dichotomy.
There is a possibility that an argument can still rise from the fact that lightsabers and other technology from Star Wars is used in his story, but if you look back at the definition of a derivative work, you will see that such behavior is allowed and can still qualify justly, and since derivative works are not banned in the ToS, such arguments cannot be made.
I said in my last essay that FictionPress and FanFiction never really give us authors a definitive line as for what qualifies as original or fan fiction, so I am hoping that the points made above, not only create that line, but show how certain authors on this website have been horribly misjudged, and treated very inhumanely by fellow authors.
Before I close this essay though, I feel that I need to play a slight devil's advocate, because I do not want my point taken out of context and have authors flooding this site with fanfiction while trying to use my essay as a supportive argument in their favor. Certain things like knock-offs,
KNOCK-OFF (patent-trademark-copyright) -An identical copy of a work or product that is protected by patent, trademark, trade dress, or copyright.
Plagiarism,
PLAGIARISM - The false presentation of someone else's writing as one's own
And just plain infringement,
INFRINGEMENT (general intellectual property). -An invasion of an exclusive right of intellectual property. Infringement of a utility patent involves making, using, or selling a patented product or process without permission. Infringement of a design patent involves fabrication of a design that, to the ordinary observer, is substantially the same as an existing design, where the resemblance is intended to induce the observer to purchase one thing supposing it to be another. Infringement of a trademark consists of the unauthorized use or imitation of a mark that is the property of another in order to deceive, confuse, or mislead others. Infringement of a copyright involves reproducing, adapting, distributing, performing in public, or displaying in public the copyrighted work of someone else.
Are not allowed on this website according to the ToS published by the administration of FictionPress.
In closure, I hope that some of my previous reviewers, and maybe even mislead new reviewers can see the truth in my point. I am being as complacent about this as possible, and have not talked down to any of you, my readers, at all. But since my last essay was so blasted for its content, I found a definition similar to the previous ones, that I would like to close with, simply to show that not only is it viewed as poor conduct in the ToS to rudely review someone's hard work, no matter what kind of fiction it is, but it is also considered illegal by the US Government under something called "Moral Rights"
MORAL RIGHTS copyright-author's rights. Certain rights of authors, beyond those recognized in copyright law, as recognized by the legal systems of some European and other countries. Moral rights generally fall into three categories: the right of an author to receive credit as the author of a work, to prevent others from falsely being named author, and to prevent use of his or her name for works he or she did not create; the right of an author to prevent mutilation of a work; and the right of an author to withdraw a work from distribution if it no longer represents his or her views.
The boldface text is the point I want to emphasize because you don't have to tear or burn a piece of literature to mutilate it, all you have to do is strongly voice a negative opinion to the point where it becomes harassment, and many users of this website do just that. I myself have been doing it lately.
So if you want to keep your moral rights, don't infringe on those of other.
Sincerely,
A Very Disappointed Author