Pride & Property & Nora Roberts, or Jane Austen meets the laws of intellectual rights
Last week I attended the Romance Writers of America conference in Washington, DC, which was quite an experience, more than I can cover in one blog post. As usual, the workshop sessions I planned to attend were okay, and the sessions I ended up in at the spur of the moment even though they didn’t sound interesting were great. I guess I’m not the only one who has trouble coming up with good titles!
One workshop that really struck me was on intellectual property. I’ve been interested in the topic for a long time because Jane Austen related fiction is in a peculiar spot as regards intellectual rights and plagiarism. If Pride & Prejudice had been written after 1923, it wouldn’t be in the public domain, and I couldn’t use Austen’s characters and especially not her scenes and words in any of my stories. Since it was written long before 1923, Pride & Prejudice, like all Jane Austen’s writings, is in the public domain, which means anybody can copy, sell, or do anything they please with them.
So Jane Austen related fiction in general is legal, but there are still some potential traps. If I wrote a scene with Darcy diving into a pond at Pemberley just before meeting Elizabeth, I’d be treading on the copyrights from the BBC series, because that was their original scene, not Jane Austen. Likewise, if somebody wrote a Pride & Prejudice story and included my original character Charlie from Bounds of Decorum, that would be plagiarism. Then there are the sub-twists. As far as I know, the BBC series was the first to call Darcy’s uncle the Earl of Matlock, which has since become standard in many fanfics. A case could be made that Andrew Davies (or whoever holds the copyright for that series) owns that term. One could also argue that since Matlock is a place name, it can’t be anybody’s intellectual property, but since in this case I’d know that I was borrowing from the series if I used it, I decided to go with the spirit rather than the letter of the law and changed the name to the Earl of Derby.
There are plenty of original memes in JAFF, and often we can’t remember who started them. Some of them are first names never mentioned by Jane Austen, like Colonel Richard Fitzwilliam and Madeline Gardiner. Caroline appearing in an orange dress is another. I was the first to locate Darcy’s London townhouse on Brook Street, but various writers have continued to use it, though there’s also a Grosvenor Square contingent. Technically, that’s intellectual property, but it’s part of the delight and comfort of fanfic to see these “facts” raised again and again, and I’d hate to see anybody avoid those because of the tiny legality.
The workshop included two intellectual rights lawyers who provided the legal background (and my apologies if I’ve gotten any of it wrong), but the striking part was provided by Nora Roberts, who moderated the panel. She told of her own experience with plagiarism. A then-friend of hers, Janet Dailey, took parts of Nora’s books and used them in her own. Some readers noticed the overlap in 1997 and pointed it out to her. Nora, being a well-meaning person, assumed it must have been some kind of mistake, but unfortunately, more and more cases came to light in Janet Dailey’s other books. Eventually Janet Dailey admitted to plagiarism and her books were withdrawn, but so many copies had already been sold that they’re still available as used books. Some things can’t be undone.
That was all old news. What struck me was Nora Roberts’ description of what the experience was like for her personally, which she shared to benefit any other writers who might find themselves facing a similar situation. The term she used was ‘mind-rape.’ Even though this happened over a decade ago, it was obvious she was still hurt by the experience. She had tears in her eyes several times during the presentation as she described feeling repeatedly betrayed. And she talked about how people, including other writers, treated her. Some people said she shouldn’t let it bother her because it was probably only done out of jealousy. Others told her that she should try harder to understand Janet Dailey’s position. Still others blamed her for “destroying” Dailey’s career. It may have been my own projection, but it seemed like that was the hardest part for her – other people who, in their own well-meaning way, minimized her distress. Despite her own great success, or perhaps because of it, she was told that her feelings didn’t matter.
My works have been subject to minor plagiarism several times in the JAFF community, and I can attest that it’s a horrible feeling. It’s always readers who point it out to me (and they have my deep gratitude for it!). The JAFF sites have generally been good about removing plagiarized material. But I did run into some of the same issues of people minimizing the importance of what happened. I think it’s one of those things that you can’t quite understand until you’ve been through it. But it was quite moving to me to see one of the world’s bestselling authors sharing her pain over her experiences. She’s a brave woman.
Addendum (7/26/09): It’s been brought to my attention that my post sounds like a subtle attempt to say that someone is plagiarizing me now. Remember, “subtle” isn’t my strong point. If I felt plagiarized and wanted to do something about it, I’d contact the author directly, and if that failed, I’d name names publicly. I wouldn’t dance around it. Sorry for any misunderstanding.
What an interesting subject. My husband is a lawyer and I know his firm has an intellectual property dept., but I’ve never given that field of law any thought until I read your blog. Now, I find it fascinating.
Your example of Darcy diving into a pond as belonging to Andrew Davies has been used by some of the JAFF I’ve read in terms of E coming upon him and he’s all wet. Does that cross the line? Is unpublished JAFF which is available through various websites subject to the IP rule? This whole subject of who owns what is really interesting.
By the way, it’s my understanding the Davies P&P was an A&E production. The BBC had done one years before, which I found stiff and “bloodless” in comparison.
You’re right about A&E and the BBC – my mistake. Online JAFF is indeed subject to intellectual property laws, but as far as I know, there’s never been an attempt to enforce it as regards any of the P&P adaptations. As you say, it’s common for fanfics to refer to scenes from P&P2 and P&P3, and even to use dialogue. The first meeting between Elizabeth and Georgiana at the Lambton Inn in P&P2 is a good example; lots of fanfics use the exchange about Georgiana being fond of music, and others use the “bewitched body and soul” line from P&P3. Sometimes the references are deliberate, and sometimes people have forgotten where Jane Austen ends and Andrew Davies begins. I used some P&P2 references myself in the original version of From Lambton to Longbourn, mostly because it seemed like a standard part of fanfics, and I only took them out when I published it.
So the bottom line, as I understand it, is that legally we shouldn’t use references to the adaptations in fanfics, but that practically speaking, it’s unlikely that there would ever be trouble about it because nobody’s making money from those fanfics. I’m not suggesting that anybody should go change their stories. But I’m not a lawyer and shouldn’t be considered an expert.
Interesting topic — especially hearing an Author’s perspective. I remember several years back there was a JA fanfic author that was blatantly taking the stories of an author and replacing the characters’ original names with Austen characters. The original author herself posted after being notified by a reader and the site took down the story. The fanfic writer also apologized. Around the same time there was controversy over two JAFF writers using the same title. There was a lot of discussion at that time about plagiarism and copyright law, but I don’t recall seeing much discussion about it in the various JAFF communities since then.
It also feels like JAFF has broadened to more individual sites than ever, which I think makes it easier for fanfic plagiarism from other established fanfic writers than when all the fanfic is at 2 or 3 websites that everyone visits.
Just a point about the 1995 production of Pride and Prejudice. You were quite right the first time Abigail – it was a BBC production, although it was partly finananced by the A&E network and distributed by them in the USA. The copyright remains with the BBC. It was first broadcast in the UK in 1995, only later being shown in other countries.
The BBC has often made multiple versions of classic stories and did indeed had made a version of Pride and Prejudice in 1980 with Elizabeth Garvie and David Rintoul as well has four previous versions.