Should All Literature Be Licensed?

Flavorwire raised an interesting point in the article Why You Should Worry About Amazon Buying the Right to Publish Kurt Vonnegut Fan-Fiction by Michelle Dean. Should all literature be licensed?

The Kindle Worlds program, which struck the deal, has in the past limited its acquisition of rights to series like The Vampire Diaries. Vonnegut is a bit of a square peg in that company. Never mind that it seems to vastly overestimate the American public’s engagement with literary fiction. Are any Vonnegut characters household names? Am I missing something?

So it goes.

 The weirdness only acquires worrisomeness in a larger legal context.

Just a few years ago, a writer named Frederick Colting produced a sequel to Catcher in the Rye that J.D. Salinger successfully challenged as unauthorized. A federal court in New York ruled that any attempt to characterize the new book as commentary on the classic was, “post-hoc rationalizations employed through vague generalizations about the alleged naivety of the original, rather than reasonably perceivable parody.” Which is to say that she didn’t buy that just writing something that incorporated a character from the original book could constitute “commentary” or “parody” and therefore fair use. ...Do we want “serious writing” to be a place where people must license characters from each other? Does that do a disservice to the way in which literature is, for a lot of writers, an ongoing conversation with their predecessors? How would postmodernist novelists, for example, be curtailed by such rules, since they often incorporate commentary on the characters of others? Forcing everyone to get a license would send chills down the spine of any novelist thinking of writing, say, a feminist novel from the perspective of, say, Holden’s girlfriend Sally Hayes, not just anyone who wants to engineer a meeting between Holden Caulfield and Serena van der Woodsen.

Licensing may be fine for fan fiction of pop shows, and really, really great for slash (no comment), but is this the direction we want for the rest of literature?

Dean is afraid that the strangulation of new licensing laws would smother literary creativity, swallow it whole, and slowly digest it with enzymes. Or maybe I should blog while watching Discovery shows about snakes. I understand that fear. I'm deeply skeptical about letting lawyers dictate to writers the content and characters allowed in their books. Once you give lawyers that power where does it end? Then again, what if you want to mock or challenge a book? That's unlikely to be allowed by the original author.

Just to drag in the devil's advocate argument, however, what if it has the opposite impact? After all, as the Salinger case shows, writers can already be dragged through court for violating copyright. And slash fan fic, I'd like to point out, is still not legal if you try to sell it. Amazon Kindle Worlds specifically bans smut. (Hugh Howey encourages you to write characters of any sexual identity for Wool fan fic, however.) I think that Kindle Worlds is good for fan fic, in that it brings into the open market (rather than black or gray market) the lively world of fan fic. There are still limitations yes, but I think both the creators of the original world and the creators of the spin-off stories benefit. (Amazon, if you are interested, I am happy to license the Unfinished Song for Kindle Worlds....)

Why would this not be true for fancy-schmancy literature as well? Maybe instead of closing off creativity, it would open up new vistas of collaboration.