Originally posted
elsewhere at AW:
Okay, time for a brief history of copyright and how authors make money.
First off, fanfic is ancient.
The Aeneid is Homer fanfic.
The Gospel of Nicodemus is Bible fanfic. And so on. But we aren't going to talk mostly about fanfic here.
Up until the invention of moveable type, creating books was slow and difficult. Even then, there was a concept of what might be understood as copyright; the right to make copies: in the sixth century, Saint Columba secretly made a copy of Saint Finnian's psalter. Finnian was upset by this and asked for judgment from King Diarmait. The king gave the copy to Finnian, saying "As the calf is to the cow, so is the copy to the book."
(Columba, miffed, then convinced the Clan Neill to rise against Diarmait and prayed for them, while Finnian prayed for Diarmait. As it happened, the Neills won. Columba was so mortified by the great loss of life that he asked Saint Molaise for penance, and Molaise told him to leave Ireland forever. [NB this parenthetical story may be untrue.])
Fast forward to the invention of the printing press. All of a sudden, it was cheap and easy to make many copies of any given book. What happened then was that the various kings, princes, and monarchs licensed the presses, allowing only things that they approved to be printed. The various books were licensed by the government to individual presses, and could only be printed by that press. In essence, copyright was eternal.
So, how did authors make their livings then? Back then we had patrons of the arts. How it worked: Some noble or rich merchant would patronize a writer, supporting that writer, in return for the writer dedicating the work to the noble. The writer might also be expected to come to the rich person's parties and laugh at his jokes. The books didn't belong to the author.
Being a patron of the arts showed how rich and powerful you were. Owning a writer was a status symbol.
This has mostly gone away; today you might consider that grant money is the equivalent. Still, if Bill Gates wants to support me in the style to which I'd like to become accustomed in return for dedicating all my books to him... hey, Bill, I'm in the phone book.
This system pretty much held up to the early eighteenth century. That's when we get the first copyright laws, and the first concept of the public domain. All of a sudden there were multiple presses printing the works of Chaucer and Shakespeare, because the monopoly of whichever press had owned them was gone.
That was when printers would print sheets, and you'd go and read them hanging drying in the print shop, and order them up; then take those sheets to a book binder. This is where we get the expression "You can't tell a book by its cover," because a cheap binding or an expensive binding might hold exactly the same sheets.
Authors ... sold their works for a flat fee to the printers. They had no rights beyond that. The only way a writer could control his works was by becoming a printer himself or hiring a printer.
Move forward about a hundred years to the early nineteenth century. We're starting to see actual publishers now. Generally these were either bookshops who needed to fill their shelves and so hired writers to write books, or printers who needed to keep their presses busy and so hired writers to write books. Writers were still either selling their works for a flat fee, or self-publishing.
Now we get to Charles Dickens. He was one of the self-publishers. He wrote The Pickwick Papers, which were very popular; "Pickwick Societies" sprang up all over England where people would get together to write their own Pickwick stories. Other people wrote and sold Pickwick sequels. Pickwick was on the stage. And Dickens didn't make a farthing off any of them. This drove him frantic; he had an all-too-detailed knowledge of debtor's prisons. What Dickens had that other writers didn't have was a friend in Parliament. So it was that suddenly derivative works also fell under copyright.
Royalties were a thing unknown -- one of the reasons Edgar Allan Poe died in poverty was because the original lump-sum payment he got from each of his stories and poems was the only money he ever saw from any of them.
That changed thanks to the English music hall.
In those days, pre-recording, the only way you could re-hear a song you liked was to buy the sheet music and words at the back of the hall. Publishers would buy the rights from the songwriters (for a flat fee), then print how-ever many they liked. What changed that was a song called, strangely enough, "Money." The author negotiated with the publisher for a smaller up-front fee, to get an additional payment for every hundred printed.
That turned out to be a good deal for authors, and pretty soon if a printer wanted to get a popular author's works, they'd have to offer royalties too.
Copyright was, at the time, for a period of ten years, renewable for an additional fourteen. Mark Twain argued vehemently for lifetime copyright, on the grounds that his early work was benefiting him not at all.
The counterargument was that public domain works created a vibrant intellectual world, to the benefit of society, and that it was ridiculous for someone to do one job, once, and profit from it for life; if authors wanted to keep eating they should keep writing, just as ditch-diggers had to keep digging ditches.
This progressed for another century of so.
Henry Holt came up with the idea of separating publishing from both printing and bookstores: He acquired and edited books from various authors, hired independent print shops to print them, and sold them to bookstores that he himself didn't own. This gave him more capital: He didn't have to maintain printing machinery, or pay printers when they weren't working on his stuff; and he could get greater market penetration by getting his books into every bookstore, not just the ones he owned.
Eventually most publishers came to follow his system: Why buy a printshop when you can put printing out to bid? And why own a bookstore when bookstores will pay you to carry your books?
Authors were making their money on advances and royalties, though you could still find authors being paid flat fees for all rights. One famous example of that was
The Little Engine That Could, which, despite being in print since the first day it came out, and selling millions and millions of copies, only made the author that one, one-time, fee.
(Other models include the subscription plan: Individual readers would send money to an author; when the author got enough he or she would write a book, print it, and send copies to the subscribers. Upton Sinclair's
The Jungle was written and published on this model, predating Kickstarter by nearly a century.)
In 1924, two guys named Simon and Schuster had a bright idea. They had this new-fangled thing, the crossword-puzzle book. But they had a hard time convincing bookstores to stock them. Crossword puzzles were a fad and bookstores were afraid that they'd have paid to stock unmoveable turkeys. So Simon and Schuster made them a deal: Any unsold stock they'd buy back at cost.
This turned out to be as good a deal for bookstores as royalties had been for authors, so publishers soon found that if they expected their books to be stocked, they'd have to take returns.
Copyright continued much as it had; an original term and one or two extensions. (The extensions could be a paperwork hassle, particularly for the impoverished authors, or those who weren't too well organized. And you still had works falling into public domain while the authors were still alive and could see others profiting from their work.)
Copyright was fraught. Unless a book was published in a particular country, oftentimes the copyright wasn't acknowledged in that country. That's why you'd see publishers listing, on their colophon, "New York, London, Madrid" or similar. That's how Ace Books was able to produce an edition of
The Lord of the Rings without paying J. R. R. Tolkien for it; the book wasn't published in the USA, so it wasn't under copyright in the USA. (What eventually happened was Tolkien created a new edition, substantially different enough to constitute a new work, which was copyrighted in the USA and published by Ballantine.)
Eventually the US joined the Berne Convention. And eventually we got the
Disney Mickey Mouse Protection Act Sonny Bono Copyright Extension Act, which yielded the current copyright of life + seventy years.
There is a reason for a term of copyright that lasts beyond the author's life: Suppose I sell a book to a publisher. The day after its published (at #1 on the Time Best Seller List!) a bus hops the curb and nails me. If copyright ended with my death the book would instantly go into the public domain and my publisher wouldn't be able to profit from their monopoly on publishing it. So, it protects them.
Bad things that have come from the life+70: One is that it's nearly impossible to anthologize interesting but minor short stories from the 20th century. Either it's impossible to locate all the heirs, or the heirs have unrealistic ideas about what reprint rights for a short story should bring. So unless you have the original pulp magazine some of those may never be read again, and are not informing current or future art. Disney may not have been able to make
Pinocchio; the story would have been under copyright 'til 1960.
So: Take-aways. Fan fiction isn't new. Perpetual copyright isn't new. Copyright vested in the author and royalty-based income are both in the authors' interest. Ownership of derivative work is also in the author's interest.
Inherent in "ownership" is the right to give a thing away. If you can't rent, sell, or give something away ... you don't truly own it.