Sequel as plagiarism?

[Gilrandir]

A couple of years ago I came across a book advertised as a sequel to "The Lord of the Rings". It is written in Russian by a Russian writer Nick Perumov. Can we call it plagiarism?

On the one, it is an independent story the scene of which is laid 300 years after the downfall of Sauron. A hobbit named Folco Brandybuck and two Dwarves (one of them is called Thorin) try to rid the world of a new Dark Lord who is descended from Boromir son of Denethor II being an offspring of Boromir’s illegitimate heir.

On the other hand, the concept of the book was totally unoriginal/"borrowed". Plus I couldn't help asking myself: would anyone read (or buy) it if it were not associated with LOTR?

Thoughts?

[Montmorency]

Can we call it plagiarism?

Fan fiction isn't a new concept.

[Gilrandir]

Fan fiction isn't a new concept.

It is no answer to the question I put.

[Montmorency]

Well, OK: what is your understanding of plagiarism? Does a story being derivative make it plagiaristic? Are all derivative stories plagiaristic? If so, are there any non-derivative stories, and can they be plagiaristic?

All descriptions of plagiarism I have come across mark it as essentially 'unattributed or unauthorized reuse of concrete elements from a concrete prior work'. Do we agree that it isn't the case that modern fantasy is largely plagiaristic of LOTR?

In a few words, "plagiarism" and "unoriginality' shouldn't be considered the same thing.

[Gilrandir]

Does a story being derivative make it plagiaristic?

This is the question I can't answer. That is why I called for others to share their mind.

All descriptions of plagiarism I have come across mark it as essentially 'unattributed or unauthorized reuse of concrete elements from a concrete prior work'.

There are elements (and even characters) in Perumov's novel that are directly implanted there from LOTR or from other books by JRR (namely The Silmarillion). Do you think the author was authorized (forgive my pun) by whoever holds legacy of JRR's rights to do it? I bet he wasn't. So, if we go by your definition, the book in question IS plagiarism.

Do we agree that it isn't the case that modern fantasy is largely plagiaristic of LOTR?

I wouldn't agree with the bolded. Modern fantasy rather stems from/was called forth by LOTR.

In a few words, "plagiarism" and "unoriginality' shouldn't be considered the same thing.

Once again, THE STORY by Perumov was original, but THE CONCEPT was not. Which smells of plagiarism.

[Montmorency]

There are elements (and even characters) in Perumov's novel that are directly implanted there from LOTR or from other books by JRR (namely The Silmarillion). Do you think the author was authorized (forgive my pun) by whoever holds legacy of JRR's rights to do it? I bet he wasn't. So, if we go by your definition, the book in question IS plagiarism.

Well, here it might have more to do with copyright. Authors, by their specific assertion of rights, can deny or approve the creation of stories and media that use their characters, places, and so on, as fan fiction. I don't know what the status of Tolkien's work is - certainly he gets so much fan fiction that perhaps it doesn't matter what the policy of his estate or rightsholders is. But either way, this is a matter of copyright, not plagiarism - and clearly the attribution to LOTR is there. In my view, that alone will avert charges of plagiarism unless you can point out specific sequences or language that have been lifted or transcribed wholesale from the original works.

Modern fantasy rather stems from/was called forth by LOTR.

Exactly.

Once again, THE STORY by Perumov was original, but THE CONCEPT was not. Which smells of plagiarism.

You don't see the dissonance with your previous sentence above?

[lars573]

But it does. Because it's passed European style copyright laws and is signed on to various international copyright agreements.

Can we call it plagiarism?

Sure. But you've got to cotton to the idea that plagiarism is an ethical concept and not a legal one. The only way an author who's plagiarized someone else's works could be punished for it is if it breaches copyright law, educational or journalistic integrity rules. This novel would probably be a breach of copyright.

[Gilrandir]

Sure. But you've got to cotton to the idea that plagiarism is an ethical concept and not a legal one. The only way an author who's plagiarized someone else's works could be punished for it is if it breaches copyright law, educational or journalistic integrity rules. This novel would probably be a breach of copyright.

Being no lawyer myself I wasn't (and am not) interested in legal consequences the author of the said book may face. I'm concerned with plagiarism per se.

[Pannonian]

Being no lawyer myself I wasn't (and am not) interested in legal consequences the author of the said book may face. I'm concerned with plagiarism per se.

You could directly ask Christopher Tolkien about Perumov's work. He's still around and active, and currently editing an updated version of Beren and Luthien to be published next year. Of course, any lawsuits involving the former may delay the publication of the latter.

[Gilrandir]

You could directly ask Christopher Tolkien about Perumov's work. He's still around and active, and currently editing an updated version of Beren and Luthien to be published next year. Of course, any lawsuits involving the former may delay the publication of the latter.

I did once but I was told that he was in self-imposed seclusion. I presume he doesn't want to be annoyed by idle inquirers at his advanced age.

[lars573]

Being no lawyer myself I wasn't (and am not) interested in legal consequences the author of the said book may face. I'm concerned with plagiarism per se.

Which has no concrete definition. As it falls into ethnics and not regulation. Clearly the author though he had the right. BUT fan communities have a tendency to feel they have more ownership over a property than the persons or corporate entity that actually owns the copyrights. If said author falls into that category. Which I'd be interested to know.

[Montmorency]

BUT fan communities have a tendency to feel they have more ownership over a property than the persons or corporate entity that actually owns the copyrights. If said author falls into that category. Which I'd be interested to know.

I mentioned this possibility - it involves the distinction between commercial use and "artistic" Fair Use.

[Montmorency]

One such case:

Swedish writer wrote a sequel/meta-criticism to "Catcher in the Rye", publishing it internationally, and was sued by Salinger's estate when he tried to publish it in the United States. Federal ruling (later vacated) held that it did not pass muster for Fair Use, and finally the two parties settled on the agreement that the unauthorized sequel would not be published in the US or Canada until the source work passes into public domain.

http://www.ncte.org/cccc/committees/...nts/jdsalinger

The characterization of Salinger as a defender of his copyright prerogatives is something that he himself does not dispute, as he is described in his own court filings as “fiercely protective of his intellectual property” and as someone who “has never allowed any derivative works to be made using either The Catcher in the Rye or his Holden Caulfield character” (Complaint against ABP, Inc, John Doe, Windupbird Publishing Ltd, Nicotext A.B., 2; see also pp. 10-11)

What would make this different from the LOTR sequel is, in the defendant's argument:

it becomes more and more clear that it is Salinger who is the most important character. His narrative starts and stops as he tries different ways to move the story forward. He even makes characters appear and disappear in front of Mr. C as the book progresses.
(Declaration of Fredrik Colting, 10).

In short, Mr. Colting is arguing that his is a transformative work, one that makes use of only that which is required for him to explore a premise that in large part centers upon Salinger himself. In additional filings this argument is explicitly supported by Robert Spoo, who had been asked to assist Colting’s attorneys in assessing the extent to which 60 Years Later had made “creative and transformative” use of The Catcher in the Rye (Declaration of Robert Spoo, 1) and by Martha Woodmansee, who describes 60 Years Later as a work of “meta-commentary” that

pursues critical reflection on J.D. Salinger and his masterpiece CR just as do the articles that literary scholars conventionally write and publish in literary journals, but[…]casts its commentary in an innovative “post-modern” form, specifically, that of a novel.
(Declaration of Martha Woodmansee, 3)

First judge disagreed and delivered an injunction on distribution, saying that the work was not sufficiently a parody, a commentary, or transformative of the source:

With regard to Mr. Colting’s depiction of the septuagenarian version of Holden Caulfield, Judge Batts concluded that for most aspects of the character 60 Years Later was simply “rehashing one of the critical extant themes of Catcher” (Memorandum & Order, 16). In reaching the conclusion that in that regard 60 Years Later was neither parody nor a commentary, Judge Batts relied not only on the text of the novel but also the wording on the novel’s jacket and public statements by the Mr. Colting describing 60 Years Later as a tribute and a sequel. It was only after the suit was filed, the Judge pointed out, that Mr. Colting and his lawyers adopted the argument that the novel was commentary upon The Catcher in the Rye, and she dismisses their claims as “post hoc rationalizations employed through vague generalizations about the alleged naivete of the original” (Memorandum & Order, 11; see pp. 16-17, n. 2). As for the claim that the novel is transformative via its use of the character of Salinger, Judge Batts acknowledged that this was a “novel” element but stated that it “is at most, a tool with which to criticize and comment upon the author, J.D. Salinger, and his supposed idiosyncracies” (Memorandum & Order, 19). For Judge Batts, the gold standard for determining that a text is a parody that satisfies the standards for fair use is that the commentary or critique be focused on the original work itself.

In the appeal, this is dismissed as failing against the First Amendment, since it works as a ban on publication, as backed by various publishing organizations:

[…]in this case, where the only harm appears to be to the pride of a reclusive author in not having his desires fulfilled barring commentary about his iconic book and character, without any actual financial harm, the lower court saw fit to ban publication of a new boo. Such a result defies common sense, and is not—and cannot be—the law.

So in short, the appeals court vacated the first decision, but before this case could go up for review in the Supreme Court, the two parties settled on their own with the agreement not to publish in Canada and the US.

None of this is to predict how the law will apply or be applied in the case of a Russian author in Russia, but just to illustrate the kinds of legal considerations that are involved.

[lars573]

I mentioned this possibility - it involves the distinction between commercial use and "artistic" Fair Use.

You brought up fan fiction, which really has a more fluid definition than plagiarism. But generally the difference between fan fiction and copyright violations is trying to make a buck directly from the fan fiction. At least in North America, unless it's clearly a parody (see pronz producer Axel Brawn's mountain of blockbuster pron parodies).

[Gilrandir]

As it falls into ethnics and not regulation. Clearly the author though he had the right.

That I figured out. I was interested what people here think of it - whether it is plagiarism or not. I see what Montmorency thinks. And I don't think I understand your attitude.