Thursday, April 24, 2008

a few final copyright thoughts before we leave the subject entirely

I ought to be proofreading The Graveyard Book. I used to love proofreading, but that was many a year ago now, especially as I have both the US and the UK versions to proof, so anything one of them picks up I have to consider for the other, and I have to read both versions back to back, not because they are different but to see what the copy editors did on different sides of the Atlantic. (Shakes head, ruefully...)

The May event at MIT isn't sold out, it's just the tickets were offered to MIT students/staff first. This according to friends of mine at Pandemonium and The Million Year Picnic, both of which are now selling tickets.

A quick Google gave me
with lots of information on the MIT event.
If you want to call to reserve tickets (617-492-6763), you must pick them up within 48 hours. No call-in reservations for tickets after May 14th. Four tickets maximum.

I've noticed you're on the speakers' list for the Children's Book Council Australia's conference in May. I was just curious if you'll have time to do a signing in between your two gigs.

If not at the CBCA, do you have plans to do one while in Melbourne this time around at all?

Thanks in advance


If you click on WHERE'S NEIL it will take you to and you will learn about the three Melbourne, two Sydney and one Hobart events next week. And to answer some other frequently received questions, I do know that it's been twelve years since I was in Perth and a decade since I signed any books in New Zealand, yes. I am also aware that it is unfair on the people in Brisbane and Adelaide that I'm not signing there, and it's even harder on the people in Canberra because, having only one body and two potential locations it could be in, I picked Hobart (where I had not been for a decade) rather than Canberra (where I was in July 2005).

I am compelled, after reading your thoughts on the JK Rowling Lexicon case, to try to sort out in my head if it bears resemblance to your dealings with certain characters you created for MacFarlane's Spawn series. Obviously the cases are different, but I see vague similarities.

While it (the lexicon) existed only on his website, and no one was profiting from it, then I see no issue naturally. The minute it gets published in book form, he stands to make oodles of money from it. Let's face facts here, people would buy it in droves. In that case I feel that he either HAS her permission to do so, or does not. If he does not (which clearly he doesn't), then does it not put him in the wrong? Does he not require her permission to make money with characters and places and ideas she created? Should he not have approached her perhaps to begin with?

I just saw these vague similarities. I realize he is not taking the created characters and making new stories with then (ALA MacFarlane was doing), and taking just seems wrong to me. If it's a poorly done book, then that reflects on, not only her, but her world as well doesn't it?

They're similar only, I suspect in that at the end of the day they aren't about the things that people (including the people who were involved in the litigation) thought they were about. I thought the McFarlane case was all about Creators' Rights, and trying to make Todd keep his promises, and his copyright filings claiming that he'd written the issues that I'd written, and all sorts of suchlike things. I think in Todd's mind it was all about proving that He Made His Rules And Was Really Tricky And Everybody had To Do What He Said, or something like that.

But really, in the end, in the appeal court, after the trial jury had delivered their verdict and I'd won all 17 counts on the case, it all came down mostly to this: does the clock start ticking on a copyright breach case when the breach is committed or when it's discovered. There's a three year statute of limitations on copyright claims. In 1996 Todd had filed his copyright claims , claiming to have written Spawn 9 and the Angela series, then three years later, in 1999, he let me know he wasn't going to honour any agreements he'd made with me for the stuff I'd created. Had my clock already run out? His lawyers were certain it had, and even some of my lawyers thought I was on shaky ground.

And the Posner legal decision at the Appeal was, essentially, nobody is expected to patrol the copyright office looking for breaches, and the clock only started ticking the moment I found out about it. (The whole Posner decision is up at and is really pretty interesting reading.)

In the Time-Warner-Rowling-Vander Ark case it's not about "is he making money from her ideas?" or "will this stop fan websites?" or any of that stuff that people are talking about on line. It doesn't matter from a legal perspective that Ms Rowling was doing or planning her own encyclopedia, or that the money is going to charity, or any of that stuff, although I'm sure Ms Rowling feels it does (because I would, if I were her).

As far as I can see it's only about a couple of really grey areas of copyright law -- I suspect, and I am SO not a lawyer, that it will come down to whether or not what Mr Vander Ark had done to Ms Rowling's work in his Lexicon was sufficiently "transformative" as to render it a new work.

There's an online annotation of Sandman. If the people who did it -- or if someone else -- decided to publish it, I couldn't stop them even if I didn't want it to come out, even if Les Klinger had finally persuaded me to get DC Comics to let him do an official Annotated Sandman. (Someone asked when Les's Annotated Dracula comes out -- it'll be in October 2008.) That's because it's obviously a transformative work -- it's based on my work, but it springs off from it.

If someone did a website in which everything in Sandman is listed in alphabetical order, as a concordance or lexicon... whether or not I was going to do one doesn't matter. Whether or not someone else is making money off my work and words and ideas doesn't matter. Whether it's a good lexicon or a bad lexicon doesn't matter. Whether it quotes me extensively may or may not matter (how extensively I'm quoted is a matter of Fair Use, but paraphrase me and you are home and dry on that count). What matters is whether it sufficiently transforms what I've done into something else by taking those entries and putting them into alphabetical order. How much original work is being done? The King James Bible is in the public domain. If you made a lexicon or concordance of the King James Bible, listing every person and place mentioned in there, something that would take you a lot of time -- you could copyright it. If someone copied it -- simply took your King James Bible Lexicon book and put their name on it -- could you sue them? Should you?

And, personalities aside, and all the newspaper commentary and most of the bloggage and online opinions, that's the kind of thing that this case will come down to in the end.

Hi Neil,

Like yourself, I am a fan of Harlan Ellison. However, as a feminist, I get really sick and tired of Ellison's misogyny.

I was wondering how you reconcile the fact that Ellison is your friend and an awesome writer with the fact that he can be really sexist. I'm especially curious because you have two daughters. (And one that went to a women's college! I went to Mount Holyoke, myself.) What do you tell them when Ellison makes denigrating remarks about women? I sincerely hope that you do more than merely laugh it off and regard it as "Harlan being Harlan." Even though he's funny as Hell, his attitude is really damaging. Besides, relying on sexist humor is beneath him and I really don't understand why he does it. I dislike it when Ellison claims to use such humor in a reclaimatory way. He's a white man -- he cannot reclaim sexism on the behalf of women.

I appreciate you taking the time to answer my question.


Emily Neal

You know, in my presence over the years Harlan has made some astoundingly denigrating remarks about studio executives, the Walt Disney company, a number of restaurants we've eaten in, several eastern European publishers, food in England, the English (except -- possibly, sometimes -- for me and his wife), editors, other publishers, a (male) science fiction critic, television producers, Fantagraphics, friends of mine, movie producers... the list goes on and on. When Harlan's rude about my friends in my presence I tend to point out they're my friends and he's being a twit, and he either looks shamefaced or he tells me I'm an idiot for liking so many people. There are lots of people, and some classes of people, like studio accountants, that Harlan has been less than civil about. I don't ever remember "women" as a class being on the list. (I remember him once being extremely rude about a female studio head, but that was in her role as a studio head, not in her capacity as a woman.) Which means I read your letter and I'm as puzzled as if it were asking how I can stand Harlan's attacks on people of colour, or the left-handed, or jazz musicians.

As for "Harlan being Harlan," I'm reminded of what the producer of the documentary Dreams With Sharp Teeth, Erik Nelson, said, when I told him that I thought the film was unbalanced, and he should interview some of Harlan's enemies. He said, "That's what Harlan said. I told him, 'Harlan, you're your own worst enemy'."


Off to Australia on Saturday...

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