The facts of the MZB case
May. 16th, 2010 11:11 am![[personal profile]](https://www.dreamwidth.org/img/silk/identity/user.png){kind=small}
opusculusSo I wrote the other day's ramble back when I was just realizing what exactly had happened, and as such it's rambly and unfocused and more "huh, rethinking things now" than establishing what all happened back then. And I wanted to write out the actual tale of what happened with the Marion Zimmer Bradley case out while my mind's still fresh from looking it up and I can still dig up most the links for my own future reference. As far as I can tell, no one's just written out the whole series of events in one place before, and trying to find out everything that happened is a pain in the ass, even with fanlore's help. (By which I mean half of the links in here I stole directly from there.)
I will note that I am not personally acquainted with anyone involved; I am relying solely on publicly available information to put all this together; and there's a whole lot of conflicting information on this case out there. I tried to rely on sources that had a direct relationship with MZB or the fan during this time period and otherwise reliable sources and ignore the 8th hand reports, but I am still almost certainly dead wrong on some aspects, and I have no idea which ones. There's also just a ton of stuff I have no idea about. Who brought in the first lawyer? How similar were the ideas? How incapacitated was MZB by her stroke? Hell if I know. All I can do is reconstruct the events as they happened as best as I can from the publicly available information. I'm just tired of having the only side written out in public are variously garbled versions of MZB's, since only having one side of a complex and contentious issue speak in public is always going to give you a bad answer.
(And in regards to the other MZB scandals I found while looking it up, I'm just going to say wow. Seriously.)
So, as the story goes, MZB was a kind and gentle soul, who was so generous that she even published professionally-paid anthologies of fanfic for her series Darkover. Until, in 1992, a fan sent MZB a free copy of the zine her fanfic had been published in. MZB saw the similarities to the story she was working on, and was kind and generous and naive enough to contact the fan and give her a dedication and a small amount of money for the idea. The fan was stupid and greedy and probably kicks puppies in her spare time and demanded full co-author credits for MZB's idea, and lawyered up. MZB, heartbroken at the loss of between a year to four years worth of work, regretfully laid aside her manuscript and forevermore banned fanfiction from her universe. Soon after, most the rest of the publishing universe followed suit, stunned and shocked that someone who had been so generous towards fanfic could have been so badly burned. A roundup of the hearsay can be found here.
Yeah no. There's a whole lot of problems with this tidy fable, even ignoring the gaping logic hole of why MZB would offer $500 to someone else just for happening to share her idea. Hey every author I've ever read - I can probably make a sweeping guess as to what the next book you write in a series will be like and usually get some things right. Will you send me $500 and a dedication out of the generosity of your heart if I write fanfic about it? Please? Seriously, call me cynical, but is this plausible to ANYONE?
But easily the biggest problem, that starts to unravel the whole thing - MZB had a stroke on October 30, 1989, and continued to suffer from heart congestion and more strokes for the rest of her life. This and future strokes (and perhaps a previous stroke in 1987, but most sources peg the 1989 one as the significant one) left her with significant cognitive impairments. Every single book ostensibly written by her after that point was at most, co-written, and, judging by the words of at least one ostensible co-writer, MZB's input didn't extend too much farther than her name and approval. Even the most adoring co-writer only talked a lot about MZB's ideas and inspiration, but didn't say a word about the actual text itself. The last book that was probably mostly written by MZB was published in 1989, 3 years before all this happened. No matter what else happened, whoever's book might have been scuttled by the fan's lack of cooperation - it was almost certainly not hers.
So...who were these ghostwriters? Well, MZB's inner circle. She'd dedicated herself to mentoring new and upcoming writers for a long time. MZB was honestly, in my opinion, a better editor than writer, and she had three major venues where she picked up new authors to mentor: her Fantasy magazine, the Sword and Sorceress anthologies, and Darkover fanfic, both the official anthologies and fanzines. As such, there were a lot of authors who got their first publishing credit from MZB and who she continued to mentor and encourage and some of whom were, presumably, willing to keep churning out novels for her with a minimum of credit in her time of need. With the severity of her health problems, I can't imagine that money didn't become a rather pressing matter. And so, at some point the decision must have been made to continue her series via ghostwriters, to keep the money flowing in.
The three who seem to have been most deeply involved early on were Elisabeth Waters, her secretary and housemate who dabbled in writing but mostly seems to have been the one who took over the anthologies (to whatever extent they might have been taken over, since the state of her ability to edit is less clear than her ability to write), Mercedes Lackey, MZB's prize student and who's generally the one I've seen talk most about this case in public, and Diana Paxson, MZB's sister in law who was the one who took over ghostwriting the most potentially profitable of MZB's potential series, Mists of Avalon. Keep in mind, though, these are only the names which come up most often, and the person most responsible could've easily been someone else all together.
Between her stroke and the incident, things were pretty slow. They'd kept up the anthologies well enough, with a new S&S and Darkover fanfic anthology coming out on average once a year. Black Trillium had been co-written with Andre Norton and Julian May, which judging by the timeline, could've been either mostly completed before her stroke or mostly written by Julian May with input from the other two (or both). The Forest House by Diana Paxson and Rediscovery by Mercedes Lackey, the first of the real ghostwritten novels, would've been in the pipeline, considering they were published only a year later in 1993, but that was all. Probably, that's where the four years worth of work idea came from - that's the duration of the gap between the last book and the first ghost-written book. During this lull where they were just beginning to experiment with ghost writing, the zine with the novel that would become the fanfic at the center of all this seems to have been published. I can't dig up the date anywhere, unfortunately. There might've been a free copy sent to MZB, there might not have. I'm inclined to say there was, if only because MZB did encourage fanfiction and so I'd be surprised if she didn't get a free copy of most zines that published her fanfic, and that particular zine had had material by her run in it in the past. Either way, one of them saw it, and obviously liked it enough to send the letter that started the whole mess.
I want to be very clear here - it was not a coincidentally similar idea. Period. It was an idea that one of MZB's ghostwriters thought was awesome and wanted permission to use, and was willing to pay $500 for the free and clear right to do so. Mercedes Lackey herself mentions that fact here, and that it wasn't the first time MZB had done such a thing. In fact, Elisabeth Waters had apparently become acquainted with MZB when MZB rewrote her story into the title story for one of the Darkover anthologies.
The way I see it, there's three major possibilities for this:
One: It was a very small idea - something on the level of liking the take she had on a pre-existing character with minimal characterization and wanting to use it for the next book. This would be the best case scenario, and the one where they really didn't even have to contact the fan at all, since as we all know, ideas aren't copyrighted.
This scenario has some evidence for it in the form of statements from MZB's inner circle, but...it's evidence from the statements of MZB's inner circle, and it's in their interest to minimize, wherever possible, the fan's contribution. I also find this and the idea that much writing was thrown out somewhat unlikely - it seems to me that for something this minor it would've been easy enough to work around. (Of course, there wasn't enough work that they think they can write anything off those notes in the future, which in light of so many other things made me laugh.)
Two: It was a medium idea - They liked the overall plot and/or the original characters and/or maybe a key plot twist or two, but were planning on writing it themselves from scratch. I honestly think there is a LOT of potential gray area here that's been overlooked by everyone discussing the case. While yes, ideas can't be owned, past a certain specificity they are. If you say a professional author has the right to use, say, original characters who just happen to show up in a fanfic taking place in their universe in a paid novel without permission, I'm not seeing a whole lot of difference between that and a fanfic author saying that they should be able to professionally publish their fanfic of the professional author's novel. After all, it's all their own words, it's just that they reuse ideas. Cordelia Vorkosigan started off as an original character in a Sherlock Holmes fanfic - does anyone think that if Doyle came across that fanfic, he'd have the right to use her as she showed up there however he pleased without Bujold's permission? I'm inclined to say that it was probably in this range, where really, their ability to use the idea without her permission would depend on their ability to file off the serial numbers. But at that point, using fanfic for inspiration is more work than doing so from scratch.
Three: They were essentially planning on taking the fanfic novel and basically polish it up and publish it as the newest MZB Darkover novel. I think this is possible, though not the most likely option. This seems to have been what the fanfic author believed they were attempting to do and that's...well, plagiarism if they don't have her permission.
So, they wrote to the fan author, offering to buy her fanfic for $500 and a dedication. Now, stories are a little unclear here. The fan author is quite definite they were attempting to buy all rights to her story. MZB's side is unclear as to how much they were attempting to buy, even if they were planning on just using the idea. I very vaguely recall hearing something about all rights even when all I heard was from their side, actually, but I am not digging through my entire Lackey collection to see if I can find it. I am very inclined to guess that they were attempting to buy all rights. I've never seen the side with more power in a legal issue not claim everything they can, especially if it's just a small thing not worth getting a lawyer to write up a contract for. Evidence: Every single ToS on the internet. (I had to write one once. You have no idea how hard it was to resist the urge to slip in a line about owning anyone who visited the site's soul for eternity after writing all the other stuff required. I'm still not sure it would've been any more obnoxiously unrealistic than the rest of it.)
Keep in mind that I would be surprised if it were MZB contacting her. It was an open secret even back then that she had co-authors who the publishers deemed not important enough to put on covers, and so I would guess that the letter was clearly about someone who was not MZB wanting to buy the rights to her fanfic novel to use it in a non-MZB-written novel, that would appear solely under MZB's name. I think it's pretty obvious in retrospect that that's going to lower the odds of the fan-author agreeing, yes?
However, it's abundantly obvious from everything anyone involved on MZB's side has ever said that it never occurred to anyone that the fanfic author might say no, or even have the right to do so. So, from this, I would assume that before they even bothered getting permission from the fan author they started on Contraband, the novel that was to have been based off the fanfic, and that's where the endless claims of lost work come from. Personally, without any knowledge of how much they wanted to use from the fanfic, I'm going to assume that if it was a sufficient amount that they felt the need to ask permission and offer $500 to use it, the amount of influence the fanfic had on the novel was great enough that they needed her damn permission to use it. In light of this, the claims of lost work sound incredibly obnoxious and, frankly, showing a disturbing amount of entitlement to me. Especially considering that at the time, they were actively publishing amateur Darkover fanfic, and so there must have been a lot of fanfic flowing through that office. It's one thing to own your own world. It's another thing to believe you own all your fans produce that might, in one version, be located in your world. Especially when they're all sending it to you in hopes of getting professionally published and it's not even your world or your fans.
Moving on! Because no one had ever anticipated that anyone might ever say no, correspondence got messy and heated. The fan wanted full co-writing credit and pay commensurate with being a co-author, which, depending on the extent to which they used her fanfic as influence, may or may not have been a reasonable desire. But at the time, they were going with ghosted works only showing MZB's name unless they were very big names, most likely to not make it totally obvious that suddenly everything MZB was writing was co-written and not really in her style. So that wasn't going to happen, especially considering there would've been another co-author who wasn't MZB.
Opinions differ as to who got the first lawyer. MZB's side says the fanfic novelist, the fanfic novelist says them. If we want to go with both sides being honest, we can say someone mentioned a lawyer first and the other side misunderstood and got one. If not, judging by the fact that MZB's side had more to hide with all the ghostwriting going on, I would be slightly more inclined to guess them, but in the end, I don't really give a crap. In the end, it was settled out of court. Whatever amount of Contraband was written was tossed into the darkness, never to see the light of day. Both sides swore off fanfic forever or at least a while, with MZB's side loudly blaming the fan for killing fanfic and one of MZB's novels. And the rest of the publishing industry went "well fuck, if even the most enthusiastic had these problems, maybe we should be discouraging fanfic." Which in practice ranged from spamming cease and desists to anyone writing fanfic to just don't put it where I can see it, guys.
And that's basically how it all went!
I will note that I am not personally acquainted with anyone involved; I am relying solely on publicly available information to put all this together; and there's a whole lot of conflicting information on this case out there. I tried to rely on sources that had a direct relationship with MZB or the fan during this time period and otherwise reliable sources and ignore the 8th hand reports, but I am still almost certainly dead wrong on some aspects, and I have no idea which ones. There's also just a ton of stuff I have no idea about. Who brought in the first lawyer? How similar were the ideas? How incapacitated was MZB by her stroke? Hell if I know. All I can do is reconstruct the events as they happened as best as I can from the publicly available information. I'm just tired of having the only side written out in public are variously garbled versions of MZB's, since only having one side of a complex and contentious issue speak in public is always going to give you a bad answer.
(And in regards to the other MZB scandals I found while looking it up, I'm just going to say wow. Seriously.)
So, as the story goes, MZB was a kind and gentle soul, who was so generous that she even published professionally-paid anthologies of fanfic for her series Darkover. Until, in 1992, a fan sent MZB a free copy of the zine her fanfic had been published in. MZB saw the similarities to the story she was working on, and was kind and generous and naive enough to contact the fan and give her a dedication and a small amount of money for the idea. The fan was stupid and greedy and probably kicks puppies in her spare time and demanded full co-author credits for MZB's idea, and lawyered up. MZB, heartbroken at the loss of between a year to four years worth of work, regretfully laid aside her manuscript and forevermore banned fanfiction from her universe. Soon after, most the rest of the publishing universe followed suit, stunned and shocked that someone who had been so generous towards fanfic could have been so badly burned. A roundup of the hearsay can be found here.
Yeah no. There's a whole lot of problems with this tidy fable, even ignoring the gaping logic hole of why MZB would offer $500 to someone else just for happening to share her idea. Hey every author I've ever read - I can probably make a sweeping guess as to what the next book you write in a series will be like and usually get some things right. Will you send me $500 and a dedication out of the generosity of your heart if I write fanfic about it? Please? Seriously, call me cynical, but is this plausible to ANYONE?
But easily the biggest problem, that starts to unravel the whole thing - MZB had a stroke on October 30, 1989, and continued to suffer from heart congestion and more strokes for the rest of her life. This and future strokes (and perhaps a previous stroke in 1987, but most sources peg the 1989 one as the significant one) left her with significant cognitive impairments. Every single book ostensibly written by her after that point was at most, co-written, and, judging by the words of at least one ostensible co-writer, MZB's input didn't extend too much farther than her name and approval. Even the most adoring co-writer only talked a lot about MZB's ideas and inspiration, but didn't say a word about the actual text itself. The last book that was probably mostly written by MZB was published in 1989, 3 years before all this happened. No matter what else happened, whoever's book might have been scuttled by the fan's lack of cooperation - it was almost certainly not hers.
So...who were these ghostwriters? Well, MZB's inner circle. She'd dedicated herself to mentoring new and upcoming writers for a long time. MZB was honestly, in my opinion, a better editor than writer, and she had three major venues where she picked up new authors to mentor: her Fantasy magazine, the Sword and Sorceress anthologies, and Darkover fanfic, both the official anthologies and fanzines. As such, there were a lot of authors who got their first publishing credit from MZB and who she continued to mentor and encourage and some of whom were, presumably, willing to keep churning out novels for her with a minimum of credit in her time of need. With the severity of her health problems, I can't imagine that money didn't become a rather pressing matter. And so, at some point the decision must have been made to continue her series via ghostwriters, to keep the money flowing in.
The three who seem to have been most deeply involved early on were Elisabeth Waters, her secretary and housemate who dabbled in writing but mostly seems to have been the one who took over the anthologies (to whatever extent they might have been taken over, since the state of her ability to edit is less clear than her ability to write), Mercedes Lackey, MZB's prize student and who's generally the one I've seen talk most about this case in public, and Diana Paxson, MZB's sister in law who was the one who took over ghostwriting the most potentially profitable of MZB's potential series, Mists of Avalon. Keep in mind, though, these are only the names which come up most often, and the person most responsible could've easily been someone else all together.
Between her stroke and the incident, things were pretty slow. They'd kept up the anthologies well enough, with a new S&S and Darkover fanfic anthology coming out on average once a year. Black Trillium had been co-written with Andre Norton and Julian May, which judging by the timeline, could've been either mostly completed before her stroke or mostly written by Julian May with input from the other two (or both). The Forest House by Diana Paxson and Rediscovery by Mercedes Lackey, the first of the real ghostwritten novels, would've been in the pipeline, considering they were published only a year later in 1993, but that was all. Probably, that's where the four years worth of work idea came from - that's the duration of the gap between the last book and the first ghost-written book. During this lull where they were just beginning to experiment with ghost writing, the zine with the novel that would become the fanfic at the center of all this seems to have been published. I can't dig up the date anywhere, unfortunately. There might've been a free copy sent to MZB, there might not have. I'm inclined to say there was, if only because MZB did encourage fanfiction and so I'd be surprised if she didn't get a free copy of most zines that published her fanfic, and that particular zine had had material by her run in it in the past. Either way, one of them saw it, and obviously liked it enough to send the letter that started the whole mess.
I want to be very clear here - it was not a coincidentally similar idea. Period. It was an idea that one of MZB's ghostwriters thought was awesome and wanted permission to use, and was willing to pay $500 for the free and clear right to do so. Mercedes Lackey herself mentions that fact here, and that it wasn't the first time MZB had done such a thing. In fact, Elisabeth Waters had apparently become acquainted with MZB when MZB rewrote her story into the title story for one of the Darkover anthologies.
The way I see it, there's three major possibilities for this:
One: It was a very small idea - something on the level of liking the take she had on a pre-existing character with minimal characterization and wanting to use it for the next book. This would be the best case scenario, and the one where they really didn't even have to contact the fan at all, since as we all know, ideas aren't copyrighted.
This scenario has some evidence for it in the form of statements from MZB's inner circle, but...it's evidence from the statements of MZB's inner circle, and it's in their interest to minimize, wherever possible, the fan's contribution. I also find this and the idea that much writing was thrown out somewhat unlikely - it seems to me that for something this minor it would've been easy enough to work around. (Of course, there wasn't enough work that they think they can write anything off those notes in the future, which in light of so many other things made me laugh.)
Two: It was a medium idea - They liked the overall plot and/or the original characters and/or maybe a key plot twist or two, but were planning on writing it themselves from scratch. I honestly think there is a LOT of potential gray area here that's been overlooked by everyone discussing the case. While yes, ideas can't be owned, past a certain specificity they are. If you say a professional author has the right to use, say, original characters who just happen to show up in a fanfic taking place in their universe in a paid novel without permission, I'm not seeing a whole lot of difference between that and a fanfic author saying that they should be able to professionally publish their fanfic of the professional author's novel. After all, it's all their own words, it's just that they reuse ideas. Cordelia Vorkosigan started off as an original character in a Sherlock Holmes fanfic - does anyone think that if Doyle came across that fanfic, he'd have the right to use her as she showed up there however he pleased without Bujold's permission? I'm inclined to say that it was probably in this range, where really, their ability to use the idea without her permission would depend on their ability to file off the serial numbers. But at that point, using fanfic for inspiration is more work than doing so from scratch.
Three: They were essentially planning on taking the fanfic novel and basically polish it up and publish it as the newest MZB Darkover novel. I think this is possible, though not the most likely option. This seems to have been what the fanfic author believed they were attempting to do and that's...well, plagiarism if they don't have her permission.
So, they wrote to the fan author, offering to buy her fanfic for $500 and a dedication. Now, stories are a little unclear here. The fan author is quite definite they were attempting to buy all rights to her story. MZB's side is unclear as to how much they were attempting to buy, even if they were planning on just using the idea. I very vaguely recall hearing something about all rights even when all I heard was from their side, actually, but I am not digging through my entire Lackey collection to see if I can find it. I am very inclined to guess that they were attempting to buy all rights. I've never seen the side with more power in a legal issue not claim everything they can, especially if it's just a small thing not worth getting a lawyer to write up a contract for. Evidence: Every single ToS on the internet. (I had to write one once. You have no idea how hard it was to resist the urge to slip in a line about owning anyone who visited the site's soul for eternity after writing all the other stuff required. I'm still not sure it would've been any more obnoxiously unrealistic than the rest of it.)
Keep in mind that I would be surprised if it were MZB contacting her. It was an open secret even back then that she had co-authors who the publishers deemed not important enough to put on covers, and so I would guess that the letter was clearly about someone who was not MZB wanting to buy the rights to her fanfic novel to use it in a non-MZB-written novel, that would appear solely under MZB's name. I think it's pretty obvious in retrospect that that's going to lower the odds of the fan-author agreeing, yes?
However, it's abundantly obvious from everything anyone involved on MZB's side has ever said that it never occurred to anyone that the fanfic author might say no, or even have the right to do so. So, from this, I would assume that before they even bothered getting permission from the fan author they started on Contraband, the novel that was to have been based off the fanfic, and that's where the endless claims of lost work come from. Personally, without any knowledge of how much they wanted to use from the fanfic, I'm going to assume that if it was a sufficient amount that they felt the need to ask permission and offer $500 to use it, the amount of influence the fanfic had on the novel was great enough that they needed her damn permission to use it. In light of this, the claims of lost work sound incredibly obnoxious and, frankly, showing a disturbing amount of entitlement to me. Especially considering that at the time, they were actively publishing amateur Darkover fanfic, and so there must have been a lot of fanfic flowing through that office. It's one thing to own your own world. It's another thing to believe you own all your fans produce that might, in one version, be located in your world. Especially when they're all sending it to you in hopes of getting professionally published and it's not even your world or your fans.
Moving on! Because no one had ever anticipated that anyone might ever say no, correspondence got messy and heated. The fan wanted full co-writing credit and pay commensurate with being a co-author, which, depending on the extent to which they used her fanfic as influence, may or may not have been a reasonable desire. But at the time, they were going with ghosted works only showing MZB's name unless they were very big names, most likely to not make it totally obvious that suddenly everything MZB was writing was co-written and not really in her style. So that wasn't going to happen, especially considering there would've been another co-author who wasn't MZB.
Opinions differ as to who got the first lawyer. MZB's side says the fanfic novelist, the fanfic novelist says them. If we want to go with both sides being honest, we can say someone mentioned a lawyer first and the other side misunderstood and got one. If not, judging by the fact that MZB's side had more to hide with all the ghostwriting going on, I would be slightly more inclined to guess them, but in the end, I don't really give a crap. In the end, it was settled out of court. Whatever amount of Contraband was written was tossed into the darkness, never to see the light of day. Both sides swore off fanfic forever or at least a while, with MZB's side loudly blaming the fan for killing fanfic and one of MZB's novels. And the rest of the publishing industry went "well fuck, if even the most enthusiastic had these problems, maybe we should be discouraging fanfic." Which in practice ranged from spamming cease and desists to anyone writing fanfic to just don't put it where I can see it, guys.
And that's basically how it all went!
no subject
Date: 2010-05-16 08:08 pm (UTC)If you say a professional author has the right to use, say, original characters who just happen to show up in a fanfic taking place in their universe in a paid novel without permission, I'm not seeing a whole lot of difference between that and a fanfic author saying that they should be able to professionally publish their fanfic of the professional author's novel.
And, yes, this blithe assumption that of course a fanwriter would and should instantly agree to hand over her plot/text smacks nastily of unthinking exploitation. I find myself equally ticked off over the influence this has had on the commercial publishers' approach to fanfic, which has spread, and actively spread, an appalling amount of misinformation about copyright and a fear and contempt for fans.
no subject
Date: 2010-05-16 08:33 pm (UTC)no subject
Date: 2010-05-16 09:15 pm (UTC)(from what I remember at the time, late HS, early Uni for me, they had intended to use an idea from story as sort of a jumping off point, rather than an intrinsic part of the novel, but it is an old memory that I can't remember the origin of and may be wrong)
ETA- um, link over by someone on my rlist
no subject
Date: 2010-05-16 10:48 pm (UTC)no subject
Date: 2010-05-17 12:28 am (UTC)I suspect the collaborator involved probably wasn't Mercedes Lackey, though, because she's been (relatively) sane abt fanfic most of the time and I'd think that sort of thing might make someone really gunshy.
no subject
Date: 2010-05-17 12:36 am (UTC)no subject
Date: 2010-05-20 03:27 am (UTC)Honestly what I am most curious about is your mention of Cordelia Vorkosigan being a Holmes-fic character! Where'd you discover/read that, because as I understand it, Shards of Honor started life as a Star Trek fanfic!
no subject
Date: 2010-05-20 12:51 pm (UTC)