Copyright protects critics, but leaves fans out in the cold

In my latest Guardian column, "When love is harder to show than hate," I look at the fact that copyright protects critics who want to talk trash about creative works, but gives no real protection to people who want to say nice things about them.

The damage here is twofold: first, this privileges creativity that knocks things down over things that build things up. The privilege is real: in the 21st century, we all rely on many intermediaries for the publication of our works, whether it's YouTube, a university web server, or a traditional publisher or film company. When faced with legal threats arising from our work, these entities know that they've got a much stronger case if the work in question is critical than if it is celebratory. In the digital era, our creations have a much better chance of surviving the internet's normal background radiation of legal threats if you leave the adulation out and focus on the criticism. This is a selective force in the internet's media ecology: if you want to start a company that lets users remix TV shows, you'll find it easier to raise capital if the focus is on taking the piss rather than glorifying the programmes.

Second, this perverse system acts as a censor of genuine upwellings of creativity that are worthy in their own right, merely because they are inspired by another work. It's in the nature of beloved works that they become ingrained in our thinking, become part of our creative shorthand, and become part of our visual vocabulary. It's no surprise, then, that audiences are moved to animate the characters that have taken up residence in their heads after reading our books and seeing our movies. The celebrated American science-fiction writer Steven Brust produced a fantastic, full-length novel, My Own Kind of Freedom, inspired by the television show Firefly. Brust didn't - and probably can't - receive any money for this work, but he wrote it anyway, because, he says, "I couldn't help myself".

When love is harder to show than hate

• [Felix Mitchell]

  Is criticism a bad thing? As content creators, you probably hate critics and would prefer people to show you some love.

  But personally, I’m sick of the slavering praise lumped onto every half-arsed effort. Maybe it’s because I live in the UK where our libel laws have a chilling effect on defamatory statements (i.e. negative statements a lawyer can argue are defamatory).

  So if you’re saying the balance is too far towards criticism and against praise, which I disagree with, why is praise so good?

  When a creative work is put out there’s already one person or team that will say it’s great – the author(s), so criticism is good for balance, and ultimately, truth.

  Half of what I read is just recycled press releases by people too busy, scared or lazy to criticise what they’re evaluating. So bring on the criticism I say.

• [grey not grey]

  Why the presumption that criticism is necessarily negative? The whole point of a critic is to hep people onto what is worth checking out. Many critics do still ocassionally give good reviews. It’s actually very, very easy for a critic to give a positive review – tehy get a free review copy, they get the industry blurbsheets, they are probably more familiar with the author and their work than the average layman… the only reason any decent critic gives a bad review is if something sucks. If the critic’s views diverge too widely form that of the potential audience, they are quickly replaced. Trusted advisor and all that. ‘Sayin.

• [sabik]

  @Uland #4:
  

  I still grate against this assertion that because it’s so much easier to do nowadays it somehow should change what is pretty carefully considered policy.

  The ease or difficulty of copying was one of the factors that went into that careful consideration. When it changes, as it has over the course of the 20th century and especially in the last few decades, it may well be that a careful reconsideration is in order.

  As a wise man said once said, “When the facts change, I change my mind. What do you do, sir?”

• [Uland]

  Exactly right Grey. I thought the same thing; “criticism” doesn’t imply some sort of “negative attack” , and clearly, authors write lovingly of all kinds of copyrighted works ( including quotes) all the time.
  The problem with giving “fannish”, non-commercial works the same protection as parody is that those same protections would necessarily “protect” works that essentially wrest control of an intellectual property from their owners. It isn’t a threat to the history of a work, necessarily, but it is to its future; What if the Serenity fan novel took off to the extent that it became more popular than an “official” work? These things could take on a life of their own, profit-motive or not.
  Parodies ( no reason they can’t be done in a loving way, btw) cannot be confused with their source material by definition.
  So, the argument just doesn’t do it for me.
  I still grate against this assertion that because it’s so much easier to do nowadays it somehow should change what is pretty carefully considered policy.
  And, really, the fanboy can write his Serenity novel all he wants to. He does not, however, have some sort of “right” to distribute it. If Joss Whedon decides to let him do it, that’s another thing; It might make perfect sense for him to do that. Great. Good.
  But, as a very small-time visual artist/illustrator, I can tell you that when I see my work ( it happened once) printed without permission or credit in a locally distributed zine, I DIDN”T LIKE IT. I want to be able to control the context in which my work is displayed. It’s important to me and not because I’ll ever make money from any of my art.
  Wouldn’t it be cool, if, – stay with me here- the guy that put out the zine and the guy who wrote the Serenity novel actually put their creative urges and their inspiration to work and created their own material? Isn’t that sort of how it’s worked for kind of a while now?

• [Tdawwg]

  But some parodies are so loving and painstaking in their grotesque reinvention of their originals: true celebrations of otherwise awful, mawkish, asinine, and banal work. And some of the celebratory fan fiction you’re talking about reads as so many gross, two-dimensional, idiotic parodies to me, all the more so for their vapid earnestness. So you kind of need to define your terms better, or use examples other than a Joss Whedon spinoff.

  As the others point out, criticism isn’t necessarily negative: the word comes from the Greek krino, “to pick out for oneself, to choose.” Criticism is foremost a pointing out, an explication; praise or blame are secondary.

• [Anonymous]

  @2 Felix:
  When a creative work is put out there’s already one person or team that will say it’s great – the author(s), so criticism is good for balance, and ultimately, truth.

  Good criticism is good for balance and truth. For every author who created something mediocre, I’m sure you can find a dozen critics who put even less thought into their reviews. I’ll take fan-fiction over “my boss made me watch this and I hated it” any day.

• [Moriarty]

  I just think it’s funny that the implication of this post is that Cory is apparently unaware that there are such things as positive reviews. Keep trying, man. You’ll get there.

• [Thalia]

  You’re implying that criticism is always done by those who dislike a work. But as you well know, the copyright exemption isn’t for criticism it is for “criticism, comment, news reporting, teaching, or research.” All of these can be positive or negative. Parodies too can be positive and negative, and often are made by people who fully appreciate the original work.

  I understand you are trying to make an argument, but I think you are exaggerating enough to make your point meaningless.

• [Tdawwg]

  @ Moriarty, funnier is the idea that accurate criticism isn’t somehow positive, but always already destructive. Destructive of one’s ignorance and self-regard, perhaps, but really destructive: what could that possibly mean?

  I’m sort of wondering how knee-jerk, reflexive positivity is any better than knee-jerk, reflexive negativity. It’s kind of demeaning to artists and thinkers as well: what, will you all cry and fall apart if someone points out the flaws in your work? It’s infantilizing to both critics and artists to suggest that artists need to be treated in this way.

• [Uland]

  Sabik- I guess I don’t see that fact- the ease of use- changing the fundamental point of the policies, which are to protect the ownership rights of the holder. IF the objective of these policies were to enunciate fair use standards for non-holders in order to promote some kind of cultural “good”, I think you’d have a point, but as it stands, that is not the objective of the policies in question, which is why advocates like Doctorow take a negative approach, explicating what these protection policies should no longer do.
  I think promoting, in the private sphere, an “open” ethic, wherein creators like Whedon choose to make allowances, is perfectly fine, even laudable, but seeking to revoke protections across the board will surely lead to greater exploitation, not less. It could be argued, I think, that greater access to modes of use, should in fact entail greater protections.

• [Rob Myers]

  Negative criticism and parody have been judged repeatedly to be protected speech.

  Critique and homage haven’t.

  So if you want to make a fan work or an academic deconstruction of something, good luck clearing the rights. But if you want to say that something sucks or to mock it, go straight ahead.

  The semantics of the word “criticism” don’t change the legal reality that trashing and mocking have better protection than investigation and praising.

  Cory is right.

• [Anonymous]

  But aren’t we missing a massive point here? An opinion praising a piece of work could have been created by the original author for free good publicity. A opinion criticising a piece of work probably would not have been written by the original author or someone affiliated with them. I guess this is the reasoning behind this whole issue.

• [arkizzle]

  Rob,

  A small but important point; parody is not a protected right in the UK like it is in the US (as libel laws contradict it), and has only recently gained any sort of traction, with Elton John sueing the Guardian over a spoof diary they published about him. The judge allowed it, so things may begin to change.

  http://www.guardian.co.uk/uk/2008/dec/13/law-press-and-publishing-elton-john-libel-guardian

  http://www.guardian.co.uk/media/2009/mar/26/elton-jiohn-guardian-libel-claim

  http://www.out-law.com/page-9699

• [Cory Doctorow]

  As the FA says, ”
  This isn’t a plea for unlimited licence to commercially exploit the creations of others. It’s fitting that commercial interests who plan on making new works from yours seek your permission under the appropriate circumstances. Nor is this a plea to eliminate the vital aid to free expression that we find in copyright exceptions that protect criticism.

  Rather, it’s a vision of copyright that says that fannish celebration – the noncommercial, cultural realm of expression and creativity that has always accompanied commercial art, but only lately attained easy visibility thanks to the internet – should get protection, too. That once an artist has put their works in our head, made them part of our lives, we should be able to live those lives.

• [Anonymous]

  One of the questions courts ask in conducting a fair use inquiry is whether a secondary use is likely to merely fulfill demand for the original. This will more often be the case when a secondary use is celebratory. People are not going to use a critical work for the same purpose as the original work.

• [Church]

  Thank you!

  I’ve been saying this for years. The fact that I can parody something but not praise it is fraked up. The current regime is obviously broken.

• [sadmarvin]

  @4 ‘What if the Serenity fan novel took off to the extent that it became more popular than an “official” work?’

  Yes, what if? How could this ever be a bad thing? All it would mean is that the original author would have to step up and write something even better. Or hey, maybe the author could even find the writer of this fan novel and decide to hire him/her? If they joined their creative efforts, they could produce some cool stuff.

  ‘Wouldn’t it be cool, if, – stay with me here- the guy that put out the zine and the guy who wrote the Serenity novel actually put their creative urges and their inspiration to work and created their own material? Isn’t that sort of how it’s worked for kind of a while now?’

  Why would creating “their own material” be any better than creating a fan work? Are you saying that Neil Gaiman is a hack because most of his work is based on mythology and fairy tales? Would he be a better writer if he were to start working on his “own material”?