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 You can find my general (now outdated) take on the legality of fanfic here.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

I'm not a lawyer, you are...

[maygra.livejournal.com]

I'm presuming maybe...and this is a legitmate question, because I'm thinking I'm misunderstanding it...but, while I totally agree/believe/know an orignal copyright cannot be lost under terms set up by US copyright law except by expiration or voluntary surrenderment...isn't it true that in case of copyright infringement where profit is made, that the failure to defend the exclusivity of economic proceeds from a copyright could be conceivably lost in a battle if the copyright holder didn't make some attempt to prevent or forestall anyone else from making money on their copyrighted material?

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?

Re: I'm not a lawyer, you are...

[rivkat.livejournal.com]

If there are illegitimate questions, this one certainly isn't. The legal concepts involved have weird names (laches, estoppel -- you haven't lived until you've been lached), but for our purposes I'll just say that the copyright owner would not lose the right to sue one person because it didn't sue someone else. Especially if the "someone else" was making a not-for-profit use, and especially if the "someone else" had a really good fair use defense.

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.