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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 You can find my general (now outdated) take on the legality of fanfic here.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.
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However, for me the real question is why would anyone want to specifically promote a fanfic archive? I get the not hiding part, that it's good to be accessible to search engines so that interested people can't possibly miss it, that most likely there is no need to get an ulcer worrying about TPTB, I get that any non-protected web-site is really public and can be seen by anyone, but why active promotion? I really don't think that starting slash/fanfic pride ads in non-fanfiction (or not primarily fanfiction) online venues is a great idea.
I've seen the replies that it was to thank the archive (which is a great idea, but I'm not sure the ad achieved that) and to promote the show, but for that an ad that promotes Smallville, maybe with a self-referential thing towards the HoYay! forum (or whatever the pro-subtext thread on TWOP SV forum is called, I don't visit there often and never the forums, so I'm not that informed about it) as a wink to slash!pride might have been better, and just to support the TWOP, there are tons of worthy fannish causes who could really use any kind of publicity without worries attached, for example "Save X" campaigns, I know of the Save Farscape and a Watch Firefly campaign, but I'm sure there more, so that there is one to be found for anybody's tastes.
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I personally promote various fandoms to people who know nothing about it; I'm grateful I stumbled into K/S when I was a youngun. If some people in the TWoP forums didn't know that other people had similar slashy thoughts and, miracle of miracles, wrote them down, then promotion offers those people new options. So I can see why one might think that promotion does everyone a favor, archive, readers and TWoP.
Not that I don't see the other side of the argument, but take away the "legal risk" kerfluffle and then it's just a fight about the etiquette of linking to a slash archive from a mainly gen site. And I just don't see linking to the main page of an archive as "outing" or invading the privacy of any one author on the archive.
As for worthy fannish causes, if fans of the archive want to spend their money on the SSA rather than on Firefly or Farscape, it seems to me they're perfectly entitled (setting aside whether the SSA consented -- Livia seemed to approve, but only after the fact; I have no knowledge there). Maybe they like SV better than Firefly or Farscape. I know I do.
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Obviously I don't think fans of SV ought to promote Firefly or Farscape. I merely meant to illustrate that IMO there are fannish things for which wide-spread advertising makes sense and is totally non-controversial for everyone involved, but an ad for a fanfic archive isn't among those. I don't think fanfic needs ad promotion or is an enterprise that is even helped by ad promotion. I think fledgling slashers in SV get the pointers in the forum probably without the ad, people who have no idea what slash is can tell only through clicking (the ad text is after all just: Watch Smallville tonight. Read the fanfic tomorrow. The Smallville Slash Archive), so you might get people (and not only visitors of the SV forum but of all forums) getting to the SSA entry page with no previous idea, not just fledgling slashers. Though since banner ads aren't that effective it's probably a moot point, and I don't think anything awful will happen because of a that banner ad, but I don't think ads are the way to introduce potential future slash fans to the fandom either.
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As a side note, I think the fair use argument is weaker, though still quite possibly meritorious, for fan vids. Courts are just more likely to react badly to fans copying and editing audiovisual material than to fans writing text. Not how it should be, but that's my guess about how it is.
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That's what I wanted to say. I just didn't know anything about the laws really, so it's probably good that I didn't say too much.
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I haven't got time to go into detail right now, but can point out a couple of good supporting precedents:
In 1859 the adaptation of the play was held to result in the creation of a new work Hatton v Kean and more recently in 1982 it was held that the re-arrangement of a copyrighted piece of music resulted in the creation of a new work Redwood Music v Chappell. It wouldn't take too much effort to argue that fanfiction creates new works, although whether the argument would succeed is a different matter. However, the very fact that there is a potential defence acts as a deterring factor in any action for breach of copyright, as you know.
I agree with you re the enforcement issue. I've sent out numerous letters before action (UK equivalent of C&D letters) in my time, often where the client has no intention of taking things further. However, I do think that we as lawyers don't realise quite how much the non-lawyer/non-experienced litigant fears such a letter. When I've tried to make the point on mailing lists that a lawyer's letter really isn't the end of the world sometimes list members have reacted with almost hysterical denial. It hasn't happened to you, so what do you know etc.
Another factor which is in favour of the UK slasher is the costs rule - loser pays winners costs. But as most fans don't have huge wads of cash, anyone contemplating bringing an action for breach of copyright will need to consider that even if they win not only are damages likely to be nominal but they'll have to pay their own costs because the fanwriter can't afford to recompense them. And should they lose, they'll have to pay the fan's costs and their own. Not exactly an attractive proposition from a business POV.
As for whether a lawyer would be willing to take on a fan's case, when Warner Bros went after a 15 year old British girl who maintained a Harry Potter site (it didn't have any fanfic on it so far as I'm aware), the lawyers who were acting for her wrote to the Law Society Gazette, a publication which is sent to every practising solicitor, appealing for assistance with the case when funds were running low. They were determined to do all that they could to assist the girl and her family in keeping costs as low as possible. Incidentally, in the end Warner Bros settled the action so far as I'm aware. Could the fact that they suffered adverse publicity be something to do with that, I wonder?
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You're absolutely right about the differing perspectives between lawyers and non-lawyers. I suppose the only reply I can make is, "I haven't received one, but I've sent them and responded to them." I just would like to have the ethics/etiquette debate apart from the legality debate, so that people can think about what matters to them rather than fearing some lightning bolt out of the sky from the godlike Powers That Be.
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You're probably right, although as you know because most developed countries have been signatories to the Berne Convention for a long time the differences between common law and civil law countries vis a vis copyright are less than is the case concerning most legal issues.
Copyright is an issue that the EU is considering in depth at present and the discussion papers on the issue indicate that there is considerable uniformity of approach throughout the EU in general. That said, of course each country will have differing approaches to copyright, although these seem to be largely in the fine details. Which is, of course, where many legal disputes arise.
On the differing perspectives between lawyers and non-lawyers, I was rather shocked when I realised quite how fearful many people are concerning receipt of a lawyer's letter. I tried hard to put myself in their place because to me, as to you, it really wasn't that big a deal. Especially when it concerns an issue such as copyright and fanfiction, which is far from clear-cut. But there is such a huge amount of misinformation concerning the legal position floating around that it is sometimes difficult to combat that to prevent people from becoming unduly alarmed.
I am completely with you in that I would also like any discussion of ethics to be untainted by legal issues, which often seem to end up only muddying the waters. As for TPTB being 'godlike'. Snort ::g::
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Also, have you seen the blasted European Court trade mark judgment about the Arsenal supporters which erodes any idea of use in a trade mark sense? Talk about threats to freedom of speech. I bet you the next crop of threats letters will be based around character names being registered trade marks. Yes, you know and I know that that would probably be an unlawful threat under s.21 TMA 1994 but given that the newly qualified squirts writing the letters while trying to meet impossible hours targets in firms in which they are essentially cannon fodder haven't heard of the section, why expect the recipient or its ISP to have done so?
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(Side note to
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Indeed, I was wondering about the resurgence of interest, though I've heard the NPR interview -- which, incidentally, taught me how to pronounce Hermione -- and read an article in some UK paper in which a solicitor badmouthed the fandom. Is there anywhere good I can go to read a good section of fannish response?
As I recall, the relevant EC Directive takes a country-of-origin approach to regulating ISPs within the EC, but does not require such treatment outside the EC. I just went to a very interesting panel at the American Association of Law Schools on the Yahoo! France case and its implications for national regulation of the Internet. As many there pointed out, as a practical matter, the EC can try to regulate all Internet content, but unless the targeted person or ISP has attachable assets in an EC country, there's really little it can do.
Choice of law is a great issue, and one I should think more about. I honestly don't think that laches would be a big deal under US law -- not for copyright, certainly, and possibly not for trademark. (I should note, however, that the issue of delay would almost certainly preclude preliminary injunctive relief in many cases; because most US IP cases are only litigated to the preliminary injunction stage, this is an important point.) But then I think there are so many valid defenses that it would hardly matter.
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Though thinking about it, what use J K Rowling has for a literary agent beats me. Doesn't seem to me that *she* needs any help selling her product. We're all falling over ourselves wondering when we'll be allowed sight of it. [/irony]
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In the US, the threat letters already assert rights in characters, trademark and copyright both, so I wouldn't be surprised at anything. Also, there's the awful idea of "dilution," which is taken to mean "any similar word violates our trademark."
Poor "newly qualified squirts" -- it is awfully hard for them to keep up, which is one reason I'm teaching now. I was doing some pro bono work with a lawyer from a large Boston firm, explaining how to comply with the Digital Millenium Copyright Act (in relevant part, similar to the EC Directive on ISP liability, whose formal name I forget), and he said he'd called a junior associate in who does IP work all the time and that the associate was completely unfamiliar with the DMCA's procedure for notifying ISPs of alleged infringement, because they (the firm) never bothered to send such notifications. They apparently just like to threaten suit first.
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The problem is not the argument that one has created a new work, but whether in doing so one has taken a substantial part of an old one: see Ravenscroft v. Herbert [1980]RPC 193, not merely so as to enjoy the judge's obiter dicta "one should not underestimate the commercial importance of the rubbish I have just attempted to describe".
So the real test under English law would be that of substantial part, not of fair dealing.
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I'm not a lawyer, you are...
I mean, I've never been under the illusion that copyright was ever any more than a legal way for creators to ensure that if there are economic gains to be made from their work, they were the ones to make it. I'm not confusing copyright and trademark law here either.
And I'm not saying that SSA in any way, shape or form is making a profit. But isn't the whole argument behind Fan Fiction as Fair Use based on the idea that fan fiction, as it is most frequently presented (as an amateur not-for-profit recreation) isn't a copyright threat because it doesn't, in the case of most media outlets such as Television or Film, threaten the economic viability of those ventures? (Spin off book franchises are a whole 'nother matter.)
I mean one of the arguments against modern lit-slash is that because the mediums are simliar -- the printed word -- that there could be shown, perhaps, the intention of amateur knock offs cutting into the profitability of of Anne Rice's next novel? (I'm not going to introduce McAffery here -- her battles are all about trademark, not copyrights, really.)
This is pretty much an adjunct discussion, because that's been pretty much the reason I don't worry that much about C&D's for fan fic sites, but pushed hard enough, if economic inroads can be proven, or even theorized to bring an actual lawsuits -- even if it were only that the perception of the general public, being unfavorable toward the depiction of homoeroticism, could lose the network viewers, and then impinge on the economic rights of the show's creators -- and couldn't that be consdered a violation of fair use?
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Re: I'm not a lawyer, you are...
In an infringement suit, the calculation of damages can be quite difficult, and I'm certain that a judge could take the copyright owner's knowing tolerance of the infringement by the particular infringer being sued for some time into account, but I don't offhand know of any case in which that was a big part of the damages issues. In a hypothetical case against an Internet archive, I can't imagine the copyright owner would seriously ask for damages, given the guesswork involved; it would be satisfied with an injunction.
As for the broader, economic harm question: whether there is economic harm from fandom is pretty hard to calculate; my intuition is that it's a benefit (certainly I would never be considering a Lex action figure without TwOP's slashy recaps). The important point is that the "transformative use" issue interacts with the "harm to the market" issue -- if a copyright owner wouldn't likely enter the market for what's at the SSA, which I imagine the WB/DC won't, then its inability to derive monetary rewards from Internet stories isn't legally relevant. And it is clear that if people start to think of SV as associated with homosexuality because of fanfic & similar stuff, and stop watching, that is not a legally relevant harm. The only legitimate claim for harm in a copyright infringement case is lost revenue caused by people consuming the infringer's work instead of the copyright owner's.
The "substitution" issue -- people failing to buy official novels because they're satisfied with fanfic -- is a novel question of law. My strong intuition is that the two types of texts are so different that a court would conclude that, like a critical review that keeps people away from a movie, fanfic that makes people uninterested in the official novels is not causing the type of economic harm the law is willing to recognize.
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I followed the "Wind Done Gone" case avidly as it played out and always wondered what its greater implications for fanfic might be; thanks for shedding a bit of light on that situation.
--kai
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But I sincerely thank you for such a complete and well thought out repsonse. I'll practice being less paranoid.*g*
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I can remember back in the days when Star Trek fans first started writing fanfiction there was talk of trying to stop its publication. We also had a letter at one point about running an unauthorised club. It surfaced again when slash hit the scenes as well.
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These corporations have a lot more at stake than we little people do, and let's face it - they ultimately only care about the bottom line. As much as they might think that fanfiction and/or slash threatens their product, calling further attention to either by bringing about a major lawsuit would be far more damaging in the long run.
All the same, again, it's good to hear from someone who has had actual legal experience in similar matters. Thank you.
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I help to run an NC-17 HP fanfic archive as well as write, so this is all of special interest to me. The article was in the Scotsman or somesuch, and I suppose you could read my LJ - I've linked to some reactions and my friends list would no doubt have more. Not sure if that helps any though.
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Again, many thanks for the legal perspective. Aged 15, (yes I'm an underage fandom member, wooh, corrupt me! - sorry, overdosing on exasperation - I long to write some really bad slash to prove that I was born this way) I find myself being wildly drawn to Internet law... oh, dear.
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Actually, that case hinged on the fact that The Wind Done Gone was a parody, and was thus protected speech. Most fanfic does not meet this definition.
I agree that the corporations that own copyrights aren't likely to sue--the cost/benefit ratio is clearly against them. I'll point out, however, that authors can and have taken legal action against fic writers and editors. Chelsea Quinn Yarbro and Anne Rice have both called out the lawyers in response to fics written in their worlds. I suspect that individual authors who don't like fanfic are more likely to sue, actually, because they have more to lose from other people playing in their worlds.
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In my opinion, much (though not all) fanfic does meet the test for transformative use, regardless of whether it styles itself parody.
Some authors are more likely than others to protest, of course, but I don't think they have "more to lose" in any economic sense. Rather, they have more emotional investment in their characters and feel more personally offended when other people play with them.
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