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So, I'm supposed to talk about fan fiction and artist's rights at a legal symposium on Friday, and this is what I came up with as a start:
Fan creations: fiction, art, and films, derivative works based on the characters and situations in copyrighted works – the further adventures of Sherlock Holmes, or Mulder and Scully, or Kirk and Spock. The practice of creating derivative works inspired by existing works has always existed, in overtly literary contexts like Shakespeare’s plays and Milton’s works, as well as in fan clubs that formed around movies and science fiction books in the early twentieth century. And, just as recent technological changes have affected mainstream copyrighted works, they have made their mark on fan activities based on those works.
When I started writing about fan fiction in 1997, fan activities were just becoming visible, if not mainstream, on the Internet. It was possible at that time for a diligent to attempt a comprehensive listing of fan fiction sites covering every fandom, from The A-Team to Zorro. The variety and number were amazing to me – there were hundreds listed. Today, Google lists over 1.2 million results for a search of the phrase “fan fiction.” To me, this is an example of the Internet’s incredible scope and power, its ability to connect far-flung people with similar interests. If you’re one in a million, you can find a two hundred and fifty-person mailing list of people just like you.
The Internet, and the widespread deployment of broadband access, has increased the variety of fan creativity in many ways. First, the number of fandoms represented has exploded – while Star Trek and a few other shows used to make up the bulk of source texts, these days, if you can name a television show from the past twenty years, you can probably find fan fiction or art about it; books and movies have also inspired substantial on-line creative content. Second, the quality of what is available varies wildly; in the bad old days, when fans distributed work via mimeographed or photocopied “zines,” there was more editorial involvement in the creative content; now, anyone can post a story minutes after writing it, before even using a spellchecker. But this is not to say that the changes have all been bad – equally, today anyone can post a story on her own web page even if its content is challenging enough to deter a zine publisher trying to print only what will be popular in the fan community. Third and relatedly, the people who participate and their reasons for doing so are quite varied – there are twelve-year-olds who are just trying to have fun sharing stories with their friends and there are published writers who are practicing their craft for a guaranteed audience. Fourth, now that text-only browsers are a fading memory and broadband increasingly available, the types of fan productions are more varied: fan fiction is the most well-known type of fan derivative work and the type that has received the most scholarly attention, but fan art and music videos are also widely available. While I concluded in my article on the topic that fan fiction was generally fair use, I am not as confident that I can lump all these activities in different media together as easily.
As compared to seven years ago, fan creativity is more widespread and easier to find – both for fans and for people who aren’t so sanguine about it. The popular Television Without Pity website, for instance, has many user forums which include discussions of fan creations, particularly fan fiction, and TV producers regularly read the fan forums (though they may well not read the fan fiction threads in those forums).
This visibility has, I think, a number of effects. First, fans who find fan fiction, art and videos often feel a sense of validation, and they may feel that their own interests are more normal, not something they invented on their own. Whether this reassurance is a good thing or not depends on what we think of the value of fan creativity – online support groups for young gays and lesbians in conservative small towns are a lot more appealing than online support groups for girls who are anorexic and want to stay that way. Second, and countervailingly, the fact that these creations are no longer mimeographed and circulated among a circle of friends who already knew one another can create a greater sense of exposure, and a certain fear that the “powers that be” might crack down if the fans aren’t careful. Fans routinely discuss whether their creative activities violate copyright, with some taking the position that they are making fair uses, and others stating that they are technically infringing but unlikely to be sued. Academics and practitioners have taken note of fan creativity; not only is there now a reading list for lawyers interested in the topic, but the ChillingEffects.org website has a section devoted to fan fiction, including copies of cease and desist letters received by various fan sites and explanations of copyright law directed at lay fans.
An interesting development over the past few years is the changing use of disclaimers. When I first wrote about fan fiction, disclaimer statements by fan authors were common and prominent: the author would state that she did not own the copyright in the characters and situations, name the entity that did, and sometimes add a request that the copyright owner not sue her. Though I have not conducted a scientific survey, my strong impression is that disclaimers are less common today, though they have by no means disappeared. I think this is tied to a sense of greater normalcy – fewer fan creators are worried that they are somehow doing something wrong, and they are more likely to expect that their readers will understand their basic premises. After reading four hundred disclaimers, after all, the four hundredth and first is likely to seem a lot less important to the creative enterprise.
One question about this normalization of creating and disseminating unauthorized derivative works is whether it is related to what some people call “Napsterization” of intellectual property – is it part of a breakdown of respect for intellectual property, a normalization of theft and a disregard for the interests of original creators? I think the answer is generally no; in fact, fans who create derivative works tend to be sensitive to the interests of copyright owners in getting attribution for the original, canonical versions of their characters. A sort of Lockean theory of adding value through labor plays a role in fan concepts of artists’ rights, where it does not for music downloaders; very few downloaders would claim to have invested labor in any relevant sense when they search for and select music to copy. Fan authors and artists, by contrast, seek recognition from their peers for adding new perspectives and twists to the official texts.
An absence of disclaimers might be thought to show a decreasing concern for proper attribution. But that interpretation would ignore the importance of context: If I say to you that life is “A tale Told by an idiot, full of sound and fury, Signifying nothing,” I certainly don’t expect you to think I made up those words myself even if I don’t attribute the quote. No more do fans expect other fans – their intended audience – to think that they created Superman or Captain Kirk. Indeed, fan creators are often highly concerned with proper attribution – perhaps more so in the absence of commercial uses, where the exchange of money can serve as the reward for creativity. “Plagiarism,” that is, verbatim copying without attribution where the copier apparently expects to receive credit for the words or images as if they were her own, is one of the most serious offenses against the fan community, and when discovered the plagiarist is generally publicly excoriated.
Concepts of proper attribution and credit, both with respect to creators of the canonical texts around which fandom is organized and with respect to fan creators, thus play a major role in fan creators’ theories of intellectual property. But exclusive property rights and rights to attribution are very different things, as these fan practices also demonstrate. Any attempt to deal with intellectual property in the digital age must recognize that nonlawyers are able to make the distinction between property and proper credit just as well as lawyers – maybe better.
Ooh, and finally there's a readable online version of Legal Fictions.
Fan creations: fiction, art, and films, derivative works based on the characters and situations in copyrighted works – the further adventures of Sherlock Holmes, or Mulder and Scully, or Kirk and Spock. The practice of creating derivative works inspired by existing works has always existed, in overtly literary contexts like Shakespeare’s plays and Milton’s works, as well as in fan clubs that formed around movies and science fiction books in the early twentieth century. And, just as recent technological changes have affected mainstream copyrighted works, they have made their mark on fan activities based on those works.
When I started writing about fan fiction in 1997, fan activities were just becoming visible, if not mainstream, on the Internet. It was possible at that time for a diligent to attempt a comprehensive listing of fan fiction sites covering every fandom, from The A-Team to Zorro. The variety and number were amazing to me – there were hundreds listed. Today, Google lists over 1.2 million results for a search of the phrase “fan fiction.” To me, this is an example of the Internet’s incredible scope and power, its ability to connect far-flung people with similar interests. If you’re one in a million, you can find a two hundred and fifty-person mailing list of people just like you.
The Internet, and the widespread deployment of broadband access, has increased the variety of fan creativity in many ways. First, the number of fandoms represented has exploded – while Star Trek and a few other shows used to make up the bulk of source texts, these days, if you can name a television show from the past twenty years, you can probably find fan fiction or art about it; books and movies have also inspired substantial on-line creative content. Second, the quality of what is available varies wildly; in the bad old days, when fans distributed work via mimeographed or photocopied “zines,” there was more editorial involvement in the creative content; now, anyone can post a story minutes after writing it, before even using a spellchecker. But this is not to say that the changes have all been bad – equally, today anyone can post a story on her own web page even if its content is challenging enough to deter a zine publisher trying to print only what will be popular in the fan community. Third and relatedly, the people who participate and their reasons for doing so are quite varied – there are twelve-year-olds who are just trying to have fun sharing stories with their friends and there are published writers who are practicing their craft for a guaranteed audience. Fourth, now that text-only browsers are a fading memory and broadband increasingly available, the types of fan productions are more varied: fan fiction is the most well-known type of fan derivative work and the type that has received the most scholarly attention, but fan art and music videos are also widely available. While I concluded in my article on the topic that fan fiction was generally fair use, I am not as confident that I can lump all these activities in different media together as easily.
As compared to seven years ago, fan creativity is more widespread and easier to find – both for fans and for people who aren’t so sanguine about it. The popular Television Without Pity website, for instance, has many user forums which include discussions of fan creations, particularly fan fiction, and TV producers regularly read the fan forums (though they may well not read the fan fiction threads in those forums).
This visibility has, I think, a number of effects. First, fans who find fan fiction, art and videos often feel a sense of validation, and they may feel that their own interests are more normal, not something they invented on their own. Whether this reassurance is a good thing or not depends on what we think of the value of fan creativity – online support groups for young gays and lesbians in conservative small towns are a lot more appealing than online support groups for girls who are anorexic and want to stay that way. Second, and countervailingly, the fact that these creations are no longer mimeographed and circulated among a circle of friends who already knew one another can create a greater sense of exposure, and a certain fear that the “powers that be” might crack down if the fans aren’t careful. Fans routinely discuss whether their creative activities violate copyright, with some taking the position that they are making fair uses, and others stating that they are technically infringing but unlikely to be sued. Academics and practitioners have taken note of fan creativity; not only is there now a reading list for lawyers interested in the topic, but the ChillingEffects.org website has a section devoted to fan fiction, including copies of cease and desist letters received by various fan sites and explanations of copyright law directed at lay fans.
An interesting development over the past few years is the changing use of disclaimers. When I first wrote about fan fiction, disclaimer statements by fan authors were common and prominent: the author would state that she did not own the copyright in the characters and situations, name the entity that did, and sometimes add a request that the copyright owner not sue her. Though I have not conducted a scientific survey, my strong impression is that disclaimers are less common today, though they have by no means disappeared. I think this is tied to a sense of greater normalcy – fewer fan creators are worried that they are somehow doing something wrong, and they are more likely to expect that their readers will understand their basic premises. After reading four hundred disclaimers, after all, the four hundredth and first is likely to seem a lot less important to the creative enterprise.
One question about this normalization of creating and disseminating unauthorized derivative works is whether it is related to what some people call “Napsterization” of intellectual property – is it part of a breakdown of respect for intellectual property, a normalization of theft and a disregard for the interests of original creators? I think the answer is generally no; in fact, fans who create derivative works tend to be sensitive to the interests of copyright owners in getting attribution for the original, canonical versions of their characters. A sort of Lockean theory of adding value through labor plays a role in fan concepts of artists’ rights, where it does not for music downloaders; very few downloaders would claim to have invested labor in any relevant sense when they search for and select music to copy. Fan authors and artists, by contrast, seek recognition from their peers for adding new perspectives and twists to the official texts.
An absence of disclaimers might be thought to show a decreasing concern for proper attribution. But that interpretation would ignore the importance of context: If I say to you that life is “A tale Told by an idiot, full of sound and fury, Signifying nothing,” I certainly don’t expect you to think I made up those words myself even if I don’t attribute the quote. No more do fans expect other fans – their intended audience – to think that they created Superman or Captain Kirk. Indeed, fan creators are often highly concerned with proper attribution – perhaps more so in the absence of commercial uses, where the exchange of money can serve as the reward for creativity. “Plagiarism,” that is, verbatim copying without attribution where the copier apparently expects to receive credit for the words or images as if they were her own, is one of the most serious offenses against the fan community, and when discovered the plagiarist is generally publicly excoriated.
Concepts of proper attribution and credit, both with respect to creators of the canonical texts around which fandom is organized and with respect to fan creators, thus play a major role in fan creators’ theories of intellectual property. But exclusive property rights and rights to attribution are very different things, as these fan practices also demonstrate. Any attempt to deal with intellectual property in the digital age must recognize that nonlawyers are able to make the distinction between property and proper credit just as well as lawyers – maybe better.
Ooh, and finally there's a readable online version of Legal Fictions.
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From:
no subject
From:
no subject
From:
no subject
Conversely, would "subverting the dominant heterosexist paradigm through radical use of subtext" count as a substantial critique? One that, like parody, would *have* to use "the heart of the text" to get the point across, so it wouldn't matter how extensive the appropriation was, as in the 2 Live Crew case?
From:
no subject
One might say that that characterization of what slash is doing denies the point that the slashers are trying to make, which is that it's not a big change in the text -- the Wind Done Gone case has a fascinating set of footnotes about this, because Alice Randall made Ashley gay, and the court says this makes her work more transformative, especially since the Mitchell estate didn't want to be associated with homosexuality -- and then the court proceeds to quote portions of Gone with the Wind that clearly support a reading of Ashley as gay in the original text. Mitchell has a character call the Wilkes "queer," a term that was in use at the time she wrote to describe homosexuals, when the character is talking about the Wilkes' love for art and literature and fancy stuff like that. So making Ashley explicitly gay is transformative and transgressive, but at the same time speaking what's already in the text, and the court doesn't recognize the contradiction.
From:
no subject
i am curious about queerness being used that way in the thirties...i mean, i can totally get the 'not really interested in women' reading (i.e., he marries the asexual and thus creates a barrier to the one that fully desires) but to put the weight on the term...need access to OED!!!
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no subject
From:
thanks!!!
[and i made a pretty bad contradiction myself when i tried dismiss GWTW against all the attempts to rescue it on feminist ghrounds ignoring the racism altogether...yet then turned around and claimed it was a much more worthy text than Scarlett :-)]
too bad you're not doing it...so chaunchey found the term in use in the thirties? would it have been used in the south???
From:
Re: thanks!!!
I don't know whether "queer" would have been in use in the South. My Oxford Dictionary of Slang gives 1922 and 1935 as first dates for adjective and noun, but it doesn't have references. Maybe the big volume does? I have now put in a research request with my library and shall report back if & when they tell me.
From:
Re: thanks!!!
you rock!!! that's earlier than i thought...it still would be somewhat difficult to make the argument for a southern lady???
looking fwd to hearing your findings! [and it was very trippy to do that essay, b/c there's like nothing ion the book until you get to the early 70s and then a whole bunch of stuff, usually heralding scarlett as this feminist warrior]
From:
no subject
Maybe we ought to write a paper on Ashley :D
From:
no subject
However, given the total lack of training in modern aesthetics that the judges in the cases we've read to date in class seem to have, this is a point that's likely far too subtle to migrate from scholarship to courtroom.
From:
no subject
So: while the fan fiction community writes derivative works, there's a strong reaction against derivative works of those works, the differing perceptions of/reactions to "true" plagiarism across fannish communities . . . ah, I'm probably wandering pretty far from where you want to be.
From:
no subject
And what differing reactions to plagiarism are you thinking about? What definition would you give for "true" plagiarism? Would it be different within the fannish community and without?
Thanks for helping me think about this!
From:
no subject
i'm not sure how much that is provable, but i'm also wondering whether the lack of initiation/mentorship has affected the lack of caution(i.e., when you had to jump through several hoops to get to the good stuff, you became part of a secret subculture...if you find ff through the latest article in your daily newspaper, it seems less likely you're worried about protecting a community that you may feel more or less strongly about).
Also, is there any relationship between other concerns (like the underage sex issues in HP) and copyrights? [i.e., it seems to me that JKR will endorse 'clean' sites and didn't Lucas try to control ff and keep it family friendly?]
looks like a cool paper! why don't i ever get to hear sth like that??? *whine* :D
From:
no subject
From:
no subject
and yes, i love talking about this stuff as well...and you know, if you ever change your mind on the book... *hint, hint* :D
did you watch tonight??? *dissolves into puddle of fangirlish delight...* three good ones in a row...is that a record???
From:
no subject
From:
no subject
and the amnesia was annoying but necessary...i liked that he got healthy (so he'll be around to torture lex) yet doesn't know how or why, and that clark doesn't know lionel lost his memory and is freaked anyhow...
From:
You're a Queer One, Julie Jordan
FWIW when it comes to Ashley I think "queer" probably just meant "odd"--if they meant what we do, it would probably have been "sister-boy."
Vis a vis disclaimers, the question is not just the potential COPYRIGHT issues for a fan site, but the potential TRADEMARK issues, and it may actually make the site's legal position worse to disclaim, because in effect you're saying that you know you're using someone else's trademarks but you don't care. That could be a fairly serious problem in terms of trademark dilution if it weren't for the strong likelihood that fan use qualifies as "not use in commerce." (I know that it's not a lead pipe certainty though.)
On a related issue, I was very surprised to see a book that was not only obviously a Harry Potter rip-off, but had a cover design that was remarkably like the HP cover design. But then, there aren't anywhere near as many trade dress infringement cases as I'd think there would be.
From:
Re: You're a Queer One, Julie Jordan
I've seen several HP rip-offs, and had the same reaction you did. On the other hand, I'm not a big fan of trade dress protection, so I'm happy to leave that alone. (And to the extent the HP dilution is bound up with the status of the copyrighted works, Dastar might preclude even a trade dress case, though that's not a question I've considered before -- have to think about that.)
From:
Re: You're a Queer One, Julie Jordan
But in the abstract, perhaps there *is* a potential of consumer confusion--in a sense, very canon-observant fanwriters are sort of setting up an alternative source of HP in lieu of JKR, etc. And a case really could be made out that thinking about that last story you read where Harry was rimming the Squid diminishes your interest in buying an HP lunchbox. Of course you're right about the non-commercial defense.
The new sampling case also raises some issues about which rights in the bundle are infringed by what--is there any analogy between the bricolage element in fanfic and sampling?
Interesting article by Fred von Lohmann (Electronic Frontier Foundation) on law.com on the 26th BTW ("Fair Use Goes on the Offensive")about Online Policy Group v Diebold, 2004 WL 2203382 (ND Cal 9/30/04). I haven't read the case yet--the article blurbs it as "Fair users on the Internet can now go on the offensive to vindicate their free speech interests against overzealous copyright owners."