David S. Roh, Illegal Literature: Toward a Disruptive Creativity: Roh is interested in literary formalism as applied to intertextuality. He argues that authors and publishers are structurally driven to uphold canonicity, “creating the impression that the canon appears invested in keeping itself in the center.” Subcultural actors challenge the center’s authority, which in good Foucauldian fashion benefits the center, leading to just enough change in the canon to keep it fresh. For formalists, appropriation, parody, and subcultural challenges promote divergence—the quality of difference from what exists, in dialogue with what exists, that establishes aesthetic value. Presenting old elements in incongruous contexts is what makes new art, and it’s the sum of change over time that matters, rather than the value of any particular work. I fully agree that you can’t understand the evolution of literature without looking at the works of non-genius as well. Roh suggests that formalism is a mechanism, but not an inevitable one—it requires the existence of technologies by which new works can reach their audiences. (Though whether that makes it evitable is up for debate—new works have always seemed to reach audiences one way or another.) What Roh calls “disruptive textuality” “calls for the deprivileging of the established author rather than of the author figure itself.” Parody, for example, creates an uncanny experience “that begs the reader to pause, rethink, and revisit old paradigms, so it is in the best interest of literary culture to sanction and even encourage the parodic text to drive literary development forward.”

Roh sees fan fiction and similar endeavors as far more threatened by the current US legal regime than I do, claiming that it “denies access to distribution networks unless a ‘good’ work qualifies as original enough—meaning an economic nonthreat.” If a subcultural work isn’t sufficiently original, he says, the law will bar it, because law has swung too far towards the ideology of individual authorial genius. Legal scholars are often, not without reason, accused of bringing into their scholarship interdisciplinary material that is only news to lawyers and is well-accepted everywhere else. Here, I think, Roh is relying on conceptions of IP law that were common among copyright minimalists 15 years ago, as in the influential writings of Larry Lessig. More recent case law and scholarship, in no substantial part in response to that generation, is far more favorable to fair use, and indicates that the “law” is not at all the threat that Roh deems to most fan fiction, although beliefs about the law may well be.

Roh also emphasizes the role of technology, and ideologies about technology, arguing that “the migration to decentralized, digital networks reframes literature according to the logic of information … which has a tendency to obfuscate the broader cultural consequence: the weakening of authorial hierarchy … [and the threat] to the art of narrative and storytelling.” We have too much information and not enough stories—something that, as he points out, Walter Benjamin complained about long before broadband existed.

Roh examines legal/literary disputes over Lo’s Diary (a retelling of Lolita from Dolores Haze’s perspective) and The Wind Done Gone (a retelling of Gone With the Wind from the perspective of Scarlett’s half-sister, the child of a slave, a new character). Though Lo’s Diary was critically panned, Roh questions whether critics missed the point (and whether the English translation of the Italian was any good) by missing that deromanticizing and making ugly the supposed “seduction” of Humbert Humbert by a child was author Pera’s aim. He reads the book as arguing that “beauty is contingent on deception. The question is whether the readers are willing to have Lolita, as well as themselves, pay that price.” I think Roh understates the force of modern fair use doctrine by suggesting that the fact that Lo’s Diary is a critique of patriarchal visions, not mainly a critique of Lolita in particular, weighs against it such that its ambiguity “would likely have been difficult to surmount in court”—as long as it provides a new meaning and message, it can be a transformative fair use.

As for Alice Randall’s Wind Done Gone, Roh recounts the case, including the Mitchell Trust’s arguments that Gone with the Wind wasn’t in need of critique because the racism in its depiction of African-Americans was already so evident that people wouldn’t take it seriously. This is a standard argument against transformativeness—either the offended rightsowner claims that the user hasn’t identified anything in the original on which she’s commenting, or that the original already contains its own critique. Sometimes they say both. Roh emphasizes that, even with fair use as an available argument, threats can deter acceptable uses, including scholarship—he contends that T.S. Eliot’s estate used to be draconian, which meant that scholars didn’t focus on his work, which led Eliot’s reputation to decline; only when the estate granted access to unpublished materials and allowed more liberal quotation did his reputation rebound.

Current copyright law, Roh concludes, favors literary stasis, rather than reinterpretation, given the structural bias of estates to preserving the status quo. “Rogue authors” thus “have little option but to be extralegal,” which I think understates the role of fair use. Staying noncommercial is definitely incentivized by the current structure, and that does have distorting effects of its own, but that’s a different thing than “extralegal” in the sense of “would be suppressed if the law were truly applied to it.”

Roh argues that Japanese practices have been very different, allowing dōjinshi based on copyrighted manga to circulate commercially despite the technical illegality of such unauthorized derivative works under Japanese law. Here, Roh more clearly defines “extralegal” works as “outside sanctioned channels of production and distribution,” bypassing editorial and legal barriers. The self-selected readership means that creators have few reasons to seek established distribution channels. As with older zines in the US, “there is minimal, if any, overlap with mainstream channels, exempting extralegal texts from market competition and publicity.” This seems more like “extramainstream” than “extralegal,” but ok. Further, extralegal texts are, he says, limited enough in distribution that “it would be unprofitable for copyright holders to pursue legal action against them because there is no real base of operations or legally actionable entity, just a loose association of amateur writers and readers.” Also, as fans, these groups actually benefit the copyright owner by consuming official products as well.

As to both fan fiction and dōjinshi, Roh reasons that they aren’t modes of “pillory” against a specific author, and thus they can’t be parodic or transformative. “[B]eing transformative indicates a desire of textual violence, a conscious design upon the original to challenge its position of privilege—the defining distinction between extralegal texts and parodic works. Instead, in fan-based communities, there is a reverence and respect for the original works or artist that lean toward the sacrosanct in spirit, if not in execution.”

I disagree both about the law (which requires less in the way of violent intent than he indicates, as noted above) and fandom. The fan communities I hang out in don’t have this reverence, or, if they do, they have it in a contested way that actually replicates the distinction Roh makes between the text and the system in which the text is embedded. I love Supernatural; I don’t have the same love for the CW, or particular episode writers. The “original” has a position of privilege with me in that I tune in to watch it, but I challenge that privilege when I write. Roh, I think, confuses a “desire to purposefully claim canonicity” with transformativeness, which is odd since he considers fan fiction to be “unequivocally transgressive.” But part of that transgressiveness, at least sometimes, is the rejection of the idea that canonicity ought to be the point, either of a text or of a system of texts. If canon moves with us, that’s great—or inevitable, in Roh’s view—but at least some of the transformative work in transformative works is done in a way unconcerned with canonicity. And other works aggressively assert that they have the “real” version, whether anyone else agrees with them or not. It’s a blooming, buzzing confusion, but its literary merit and its legal status are only loosely joined.

Roh follows several legal scholars in concluding that dōjinshi’s popularity, and the fact that it offers a launching point for some pro careers, contradicts the narrative that extending copyright protection must help creativity. Also, Roh argues that dōjinshi has important differences from English fan fiction, because it has “a larger audience, reaches deeper into Japanese culture, and sometimes rivals mainstream manga in quality and professionalism.” Hard to say about Japanese culture, but citation is needed for the “larger audience” point—the AO3 has 150 million pageviews/week, and it’s not the biggest fan fiction archive; though many of those views are for non-English works, even that subset is still pretty big. And quality and professionalism, I’ll definitely claim equivalence there. The legal status of dōjinshi is different because there’s no fair use, but also less litigiousness, lower monetary awards for lawsuits, and fewer lawyers in Japan. Though dōjinshi may well have been more out in the open in previous decades, with English fan fiction confined to conventions and zines, that’s no longer true; direct contact between fans and organized communities are now easily available.

Roh concludes that “the breaching of boundaries, authority, and property shapes and alters both protected and extralegal texts.” Fan fiction thus competes with canon for places in the social hierarchy. The role of extralegal texts is to challenge conventions, which then “compels canonical literature to adapt and change accordingly.” Yesterday’s subversion is today’s commonplace—see, e.g., slash versus gay and lesbian relationships portrayed in conventional media today. Extralegal texts can reveal new micro-niches where innovation can thrive and be coopted by commercial publishers (see, again, A/B/O, or Fifty Shades, or what have you).

Formalism, he contends, can help us understand these shifts, as different versions of a tale compete for dominance; “extralegal texts’ value lies in their deviation from the prevailing artistic norm. The formalist tendency to concentrate on generic shifts works particularly well here, as an extralegal landscape littered with subgenres illustrates the results of formalist mechanics at work.” Somehow I really want this analysis directly applied to A/B/O dynamics: “One might observe that all an extralegal author has to do is to follow the conventions of a subgenre (e.g., yaoi) and simply plug in a selected cultural artifact.” Um, no pun intended?

But Roh also cautions that individual artists retain agency, because hybridization is not easy work. From Bakhtin: “an artistic hybrid demands enormous effort: it is stylized through and through, thoroughly premeditated, achieved, distanced. This is what distinguishes it from the frivolous, mindless, and unsystematic mixing of languages … characteristic of mediocre prose writers.” (See also: Lin-Manuel Miranda.) Roh continues: “A subgenre’s conventions … provide a skeletal structure onto which an artistic layer can be draped. Few would agree that a hypoethetical poet adapting a work into a vallad, villannelle, or other verse form simply performs mechanistic work. Furthermore, many extralegal texts defy easy categorization. What is important is that each generic frame creates a differentiated space for experimentation and alteration from the norm. Taken together, the mass of extralegal texts engages in an intertextual relationship with the original, driving both the periphery and center to adapt.” Extralegal authors then deviate further; “innovation and divergence come incrementally along a chain of forking subgenres…. The largest impact comes from the sheer mass of texts, including established subgenres and those that defy typology, circling and recontextualizing the center.”

Roh cautions against complacency, since expanding copyright might be used to shut down both extralegal texts and the distribution mechanisms that have made them so successful. Or fan fiction might become commercialized, as with Amazon’s Kindle Worlds, taking away from the subcultural subgenres where innovation is most likely. But nothing is set in stone. Roh compares existing literary canons to cruft in software—outdated code that hangs on because it’s part of what came before, not because it’s best or efficient; sometimes it has to be removed in order to improve the code. Copyright is, he argues, a way of giving literary cruft a right of refusal—a right to prevent improvement and versioning. Different parties in the system have diverging interests here; not a new observation, but perhaps, as he suggests the analogy of allowing versioning is useful, since its benefits in software are well understood.
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