Yesterday I told you about my impossible dream of someday seeing a version of Twilight with vampires in it. And I said all that in the context of a conversation about the public domain.

So what is the public domain? Well, remember way back when we talked about the cost of making money off copyright? I said that, essentially, all copyright really does is give you the luxury of taking your fans to court.

Well…essentially, the public domain is the opposite. A work of art that’s “in the public domain” is free to be infringed-upon by any and all, and nobody gets to sue anyone over it.

Finding Value in Free Art

Does that sound a little crazy? It’s actually how most of human art has been produced.

You see, copyright is a relatively new concept. It started some 300 years ago. Before then, we didn’t have the beneficence of a government-enforced monopoly encouraging artists to pursue mastery and fame. Instead, we had to settle for the work of petty amateurs like Michelangelo, Leonardo da Vinci, John Milton, and Shakespeare.

Artists regularly study each other’s methods, and practice them — recreating styles, effects, characters, even whole scenes. Historically, that’s how new artists learn the fundamentals of their craft.

And it’s quite normal for new fantasy writers to make up stories that are either King Arthur, Robin Hood, or Lord of the Rings. We laugh about it sometimes, poking fun at the more egregious cases like Eragon, but it’s actually a pretty valuable learning experience all around.

Of course, if your story is just a scene-for-scene retelling of a copyrighted work, you’re going to get sued. And if it’s a retelling of one of those public domain works, you won’t be able to sue anybody else. So is a project like that even worth pursuing?

“Free Speech” vs. “Free Beer”

It depends on your goals. If you just want to make a fortune off selling rights (or suing pirates), then the more original your story is, the better.

I don’t know many artists who work that way, though. I know a lot more who’d dive wholeheartedly into a public domain project like that if they had a great idea, resigned to the reality they’ll never make a dime off that work.

There’s no real reason to believe that, though. In fact, there’s a lot of confusion out there about how free art works.

Luckily, the people who’ve been promoting free software for the last couple decades have come up with some great ideas on the topic. One of the things they like to point out is that there’s a difference between “free speech” and “free beer.”

Art in the public domain is free of cumbersome legal restrictions (and, with them, the burdens they place on the creators). That doesn’t mean the creator has to give it away for free, though.

If you walk into a Barnes and Noble looking for A Tale of Two Cities, you’d better expect to pay for it on your way out. That’s a public domain book, and your local bookseller is happy to provide it for the low, low price of $9.99 (same as you’d pay for last year’s Dan Brown paperback sitting on the shelf next to it, which might still be under copyright when your great grandchildren are browsing for something to read during a shuttle ride to Starport Jove).

How to Use Free Art in Your Writing

So where does that leave you, as a writer? It leaves you with a wrenching moral dilemma, is where, but I’m not going to bring that up for a couple weeks yet. I’d prefer to let you enjoy your innocent bliss for a little while longer.

It also leaves you in a place of power, though. Copyright has convinced so many of us that any kind of copying is wrong, and so the bulk of today’s artists are trying to do it with one hand tied behind their backs.

Borrowing technique and style from other artists is how art is done, and there is a tremendous amount of art ready to be borrowed from. Come back tomorrow, and I’ll talk a bit about how to use free art in your writing.

This week we’re talking about getting paid for your writing, and yesterday I mentioned that copyright was originally created to promote creative expression — that basically the government established an artificial monopoly to an intangible good, and they back it up with (legal) force.

They earnestly believed a system like that would encourage young people considering possible career options to have faith that pursuing an art could be a viable job opportunity. Is that what it’s done for you?

For me, personally, copyright has never created an incentive to produce art. Copyright is a nuisance — an obligation on the artist, just like all the marketing and sales stuff we’ve got to do these days, instead of focusing on creative expression.

I want  to talk about that today. Really these are the same topics we discussed yesterday, but I want to address the darker side of them: what it costs you to get paid by copyright.

Defending your Copyright

I talked about it a little yesterday, but even though you automatically own the copyright to any work you create as soon as you create it, that ownership can be a pretty flimsy thing. If you don’t choose to go through the paperwork and filing fees to register your work with the Copyright Office, it can be incredibly difficult to establish your rights in court.

Worse than that…if you’re not careful, it’s incredibly easy to lose your rights, even to a work that you have registered. The same laws that grant artists ownership of their intellectual property also place the burden on the artists to protect those rights.

If people start misappropriating your work and you don’t stop them, it can be ruled that your works have entered the public domain. I’ve heard that given as an explanation for what happened with Calvin of Calvin and Hobbes (last paragraph).

So for you to benefit from your copyright at all (including just long enough to sell it off to a publisher), you’re personally obligated to police any use of your material — a full-time job in itself — and take on the costs and difficulties of preventing anyone using your work. That means, at the very least, sending off a Cease and Desist letter, and in all likelihood taking someone to court to force compliance.

That’s usually someone who admired your work enough to consider it worth sharing, and you’re stuck sending lawyers and federal agents to punish them for it. If you don’t, though, you could easily lose your right to ever get paid for that product (sort of).

Oh, and even when you do commit to defending your work, and you invest in a good lawyer and a fancy suit for your court dates, there are fair use exceptions to muddy the water. The problem is that they’re vague, meaning neither you nor the infringer ever really knows if a use is allowed until you’ve both spent the time and money to hash it out in a court case.

Limitations of Copyright

Litigating for pay isn’t a terribly artistic process, and even if we liked the idea, most artists couldn’t afford it. That’s where the publishers come in, because they do have the resources to do all the policing and lawyering.

You get to sell them your copyright (and with it, all your control over the work and most of the profits from selling it), and they’ll make sure it pays off. They’re the ones who’ve convinced our government to enact brutally restrictive intellectual property laws in the U. S. (and to force other countries around the world to follow suit), because copyright does pay them to do what they want to do.

What they do isn’t “create art,” though. Copyright props up a warehousing and distribution industry and (of course) a significant portion of the legal industry, but it’s hard to see how copyright “encourages young people to pursue an art” by forcing them to put roofs over the heads of some poor starving lawyers.

And, in the end, all copyright does is keep people from seeing your creation, discussing it, and being inspired by it. The only thing it’s even capable of doing is restricting your audience.

There Are Alternatives

But that’s how it has to be, right? I mean, they invented copyright for a reason. And as the corporate suits and the lawyers have been reminding us lately, you can’t compete with free.

There are alternatives, though. There are other ways to do business as a writer (or any other kind of artist). We’re going to talk about them throughout the month of July.

Intrigued? Come back next week for a discussion of the public domain, what it is, and how you can use the public domain in your writing.

I’ve already told the sad story of how I graduated, gave up on my dream, and took a day job. I’ve also since admitted that it wasn’t really all that bad, thanks to some dedicated friends — including one who came to Tulsa to work with me.

That was Toby, and before he came to work with me, he happened across a job posting he thought I might be interested in, and passed it along. When I dug a little deeper, I discovered it wasn’t exactly a job offer. It was a writing competition on the web forum for a game that didn’t actually exist.

They wanted a staff writer, though, and that sounded to me like a ridiculously cool gig. So I put in my submission — 1200 words or so adapting an Arthurian legend to their sci-fi space-warfare universe — and waited to hear back with comments.

What I got was a big official-looking envelope in the mail, and a nine-page contract that spelled out in intricate detail what they wanted me to write, who owned what “game concepts,” how much new material they expected me to provide, and when I could hope to get paid. The answer to that last one was an optimistically-worded “never.”

It was clear, reading through that document, that they had put a lot of thought into intellectual property rights. They reserved to themselves the universe (since they’d already come up with a setting that was integral to their game engine), and they asserted the right to reject any story material that they felt ran contrary to their universe, but other than that they were anxious to protect my rights.

For page after page they clarified that any characters, new settings, storylines, plot developments, representations, or descriptions I provided them would remain my own creative works completely under my control until such time as the game secured full funding and they could pay me a real salary. In the meantime, I’d provide them with stories and grant them the limited one-time right to publish them on the website (since that was the whole point), and if we parted ways I’d be able to do with them whatever I wished (assuming, of course, I could sufficiently scrub them of references to the larger universe).

It was, honestly, one of the most flattering documents I’ve ever read, and it showed — on the part of a technically-minded programmer and a somewhat-savvy business major — a surprising respect for my status, my expertise, and my rights as an artist.

It was also entirely unnecessary. The envelope also contained a $200 check to serve as a retainer until such time as they secured funding, contingent (of course) on my acceptance of the contract. For 200 bucks and a fiction writing gig I’d have signed over the rights to my firstborn. I mailed the signed contract back to them, and started flooding their inboxes with far more story than they could have possibly anticipated.

Getting Paid to Write

For me, that check was a more emotional validation than all the respectful legalese. It was the first money I ever earned writing stories, and that made it special. (It was also the last penny I ever saw from that project, but who’s counting?)

We all want to get paid to write. If you didn’t, you wouldn’t be here (not on a Thursday, anyway). It’s a tough dream to realize, though, even if you’re willing to settle for work like that. (I probably ended up clearing less than a dollar an hour on the work I did for them, but it was a lot of fun.)

But right now, there are basically two models for getting paid as a writer. Professional writing can pay you a handsome salary to show up at work and sit at a desk all day, where you’ll write really boring stuff.  Creative writing is a lot more fun, but it’s ridiculously hard to break into the market, and even when you do, it pays a wildly erratic salary.

If you’re trying to play that game, you’ve got my sympathy. You’ve also got a lot of factors to consider, and I’ve been considering them for most of a decade. So come back tomorrow and I’ll tell you the ins and outs of how copyright generates income.