Marginality and Legality

[rivkat]

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 You can find my general (now outdated) take on the legality of fanfic here.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.

Comments

[mandragora1.livejournal.com]

I accessed your post from metablog and thought I'd chime in to say that the position in the UK re fanfiction is pretty similar to the US, although we're in the fortunate position that it's more likely than fanfiction doesn't breach copyright in the UK compared to the US.

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?

[rivkat.livejournal.com]

Thanks for the UK information. It's my impression that Continental-type "fair dealing" is more limited than fair use in common-law countries, so French people reading this may not find it helpful.

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.

[mandragora1.livejournal.com]

It's my impression that Continental-type "fair dealing" is more limited than fair use in common-law countries, so French people reading this may not find it helpful.

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::

[ex-ajhalluk585.livejournal.com]

Well, I'm also a UK lawyer who has in my time sent out a fair few letters of claim, and have had enough experience also acting for people who've received them, not all of them big corporations. And the point is, not only are the things scary to the lay reader, they're intended to be. The number of times I've had to explain, for example, to a potential defendant that the "respond within 48 hours" bit at the end does not mean that that at the end of 48 hours they will be injuncted, has to be seen to be believed. And I am becoming increasingly bothered by the downright disregard certain firms and entities seem to have for the minor consideration of whether they have a cause of action before not only asking for undertakings in the broadest terms, but following up their demands with protracted and scary correspondence. I'm not, in fact, talking specifically about fanfic in this context, but certain copyright collecting societies who are prepared to back up claims for a blanket licence with threats of action to sue for incidents they refuse to particularise in respect of works they probably are not entitled to represent.

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?

[pinkfinity.livejournal.com]

Given that the laches defense (or lack thereof) in the UK is also very different from the setup in the US when it comes to trademark matters, I'm wondering if there might be a chance that UK-based source material may try to impose EC standards on US (or at least, non-EC) ISPs. Just another example of how some might try to force the internet to adhere to the guidelines of the most-restrictive denominator.

(Side note to rivkat - I think the sudden influx of Harry Potter fandomers on this not-especially-recent-LJ posting is because someone pointed me to your LJ yesterday, especially on the issue of market implications in copyright cases involving literary-based fanfic. (Somehow, some think it's safer to write HP fanfic based on the films than the books.))

[rivkat.livejournal.com]

Thanks for stopping by.

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.

[lexin.livejournal.com]

The article on Harry Potter and slash (it was specifically slash, and from a 'we must Guard The Poor ickle Kiddies from this Dreadful Danger' angle) appeared in The Scotsman, I don't have the URL handy. The reason why the fan who brought it to the fandom's attention did so is because it's not WB et al who is quoted as making the fuss, but the solicitor for J K Rowling's literary agent.

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]

[rivkat.livejournal.com]

Hi there. Thanks for swinging by. It's good to meet other lawyers who know something about this. I admit, my EC/UK law is not well-developed, though I expect that I will be teaching International Copyright or, worse, International IP next year, so I'll have a pretty steep learning curve.

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.

[ex-ajhalluk585.livejournal.com]

>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.

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.