Read through the comments – someone has also copied into the discussion Gaudio’s actual emals that Griggs claims were “rude”. (Gaudio published them on her own blog.)

http://consumerist.com/2010/11/magazine-that-stole-writers-story-likely-shutting-down-blames-author.html

Some of my pictures were made for official Tolkien events, others not. While I still own the copyright, there are restrictions on what I can do with the pictures.

I once dealt with someone who was making my prints who openly violated the terms the Tolkien Estate set up. We are not supposed to print proper names on the prints, certificates of authenticity, etc. We can’t print “Lord of the Rings” on them.

I can make a picture of a noble elf, everyone knows it’s Thranduil. But I can’t splash “The Hobbit” all over it.

I know several top illustrators who have done official and unofficial Tolkien illustrations and commissions. Some have contracts to do so, others don’t.

If you make a picture of Galadriel, you just name it “Lady of the Golden Wood”. Everybody knows it’s Galadriel. It’s your picture, and if you are not copying something from the film, what you have painted is a picture of a blonde woman with pointy ears.

OK – had to get that out of my system.
Harlan must be respected.
‘Nuff said!

An excellent point: we treat various copyright infringement issues differently because each situation is different.

As you wrote, the consistency in our action is not in going after every infringer, but in the perception of harm.

I don’t know anyone who goes after every infringement. Each copyright holder has different boundaries and ideas about what may be harmful to them.

When I was a kid, I drew a piece based on Harlan Ellison’s story “Repent Harlequin, Said the Ticktockman”. I got my first lecture on how what one might intend as a tribute to a favorite author might be perceived as an abuse of the author’s rights.

And you do not want to get this lecture from Harlan.

Out of respect for his wishes, I have never sold the piece.

That said, Harlan has been very good to me, and we are friends.

The author replied also sincerely with no snark that he didn’t actually hear the person say that to him. Because if he had, he might have to act on it regarding the protection of his property. His smile was genuine, and later I learned that he was very flattered to have insipred the guy.

Maybe he was nipping something in the bud, maybe he just felt like he had to say something. Maybe he was serious.

I think the people wanting a visible consistency like what you mention above are looking at the bullet and not the gun. The consistency isn’t in allowing one person to do one thing, and not allowing another. That’s obvious.

The consistency is in the copyright holder asking the question. Is this harming me. I’ll never know what the author truly thought, but I got to see the enforcement in action.

You cannot copyright a character, but characters enjoy copyright protection.

You trademark a character DESIGN.

Superman’s big red S, Batman costume, Batman symbol, all trademarks.

Clark Kent, mild mannered reporter for the Daily Planet, secretly the son of another world, real name Kal-El. Endowed with superpowers, he flies around the city of Metropolis righting wrongs. He goes by the name Superman.

All of that is protected by copyright.

Keep in mind that by law YOU HAVE NO LEGAL RIGHT to make derivative works. BY LAW you have no legal right to make fanfic or fanart.

However, only the copyright holder has the right to act on copyright violation. If they choose not to act against one person, that has no bearing on whether or not they make act against another.

If you were to sell fanfic emblazoned with the A Distant Soil logo all over the cover, that is a trademark violation. Because of the nature of trademark law, I have to take legal action or lose my trademark rights. EDIT: more precisely, I could lose the power of the trademark. There is little chance of my trademark falling into generic use via non-enforcement, HOWEVER, if at a later date I did have a serious dispute over the trademark, my failure to enforce earlier trademark violations can be used as an excuse by the opposing party that the trademark value has been diluted by my non-enforcement. I hope that makes sense?

The fanfic itself is a copyright violation. I do not have to take legal action against a copyright violator. There is no danger to my copyright.

For the most part, creators and publishers – including me – have nothing against fanfic or fan art, and do not mind if you sell your fan art or post your fanfic online.

If you publish you fanfic in zines, I may choose to turn a blind eye.

If you sell your fanfic and give me attitude about it, you will hear from my lawyer.

Once there was an A Distant Soil fan club, and I chose to endorse it.

The ladies who ran it decided my endorsement made them my employees. So they presented me with a bill for thousands of dollars.

So there isn’t a fan club anymore.

For every 150 fans there are who are perfectly reasonable, there is one who is stark raving bonkers.

And this is why we can’t have nice things.