Marginality and Legality

lanning has a very interesting post here, about the threat to the slash community if we become too visible to WB/DC. Specifically, she's concerned that copyright owners may "shut [us] down" if slash becomes too visible and, potentially, scares off the straight white guy demographic.

I understand those concerns, but I don't agree. (I'm only going to address legal concerns, not the possibility that the writers might desperately try to heterosexualize the characters. The great D.A. Miller pointed out that, once the specter of homosexual desire is invoked, it can never be erased. Het attachments are easily read as denial or displacement, especially -- as may become relevant to SV -- when two men are competing for the same woman.) My expertise is in U.S. law, so what I'm going to say might not apply in Europe.

No matter how much press slash gets -- and I think it will always be fairly limited, human-interest type stuff -- the WB/DC are extremely unlikely to take legal action. Copyright law of late has been very favorable to "transformative" uses that shed critical or interpretive light on original works, and slash in particular fits right in. In the recent Wind Done Gone case, Alice Randall retold "Gone With the Wind" from a very different perspective, including mulatto and homosexual characters. The Eleventh Circuit relied in part on the fact that Margaret Mitchell's estate didn't want to be associated with homosexuality when it ruled that "The Wind Done Gone" did not infringe the estate's copyright. You can find my general (now outdated) take on the legality of fanfic here. In recent years, the law has only shifted more towards my view. (In fact, as a gratuitous aside, the Eleventh Circuit opinion cites my other, broader copyright article.)

Contrary to what some people say, copyright can't be lost if the owner doesn't enforce it against everybody. And, more than copyright owners want to suppress nonprofit uses of their characters, they don't want to lose a case that sets a bad precedent. Moreover, the publicity consequences of a real suit could be quite grim. How many people bought The Wind Done Gone because they knew about it from the reports on the lawsuit?

A responsible lawyer would tell her client that it would be unlikely to win a case against Internet slash. In fact, my former law firm represented the main archive of a major Internet fandom when the owners of Barney, the big purple dinosaur, objected to a crossover in which Barney was revealed to be a flesh-eating alien. In response to Barney's cease and desist letter (C&D letter; lawyers never let one word say what three words could; also known as a "threat letter"), we sent a letter that was actually pretty funny, in that "In regards to your letter of [date], concerning the material found at [url] titled '[Barney is evil]' (hereinafter "the Story") ..." way of legalese meeting the mundane.

A few days later, one of our lawyers received a call from the guy who'd sent the C&D letter, in which he said, "If we'd known [archive] had a lawyer, we never would have sent the letter." The story's still there.

Now, I can't represent everyone who gets a C&D letter for free, though I'd do it for some people. But I'm not unique. The Chilling Effects Clearinghouse is a great resource, with examples of C&D letters to fan sites, examples of responses, and a wealth of information about the law. The point is that C&D letters aren't as threatening as they say they are. The Digital Millenium Copyright Act also provides Internet users some protection against shady infringement allegations; the Chilling Effects Clearinghouse can tell you more if you're interested.

The worry that slashers won't have the resources to resist allegations of copyright infringement, whether legitimate or not, is an eminently reasonable worry. But a lawsuit is an extremely unlikely scenario, and it takes fewer resources than you might think to resist a C&D letter.

I get soapboxy about this because, well, it's my field. And as a theoretical matter, I think the idea that "they could shut us down, they're just not doing so because we're quiet" attributes too much power to corporate entities, in contradiction to a premise of fanfic (that we can respond to and rethink popular entertainment). In many cases, they really couldn't shut us down. Yes, we're marginal; yes, there's a lot about being marginal that I like; no, we're not illegal. We do not exist on sufferance.

Eclecticon

Is anyone I know going? I'm very tempted, but scared of being all on my own.

Also:

Which Founding Father Are You?

Serves me right for hating the David McCullough biography. But "Truman" was so good ...