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 You can find my general (now outdated) take on the legality of fanfic here.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

[cofax7]

Thanks for this post.

[ratcreature]

I think it's great to point out the resources fans have and to put worries about copyright into perspective, and while I can imagine scenarios that could turn very bad for some parts fanfiction-based fandom (like massive publicity describing some fandom or section of fandom as a haven for child pornography, maybe even viewed as targeted to children), I think the TWOP ad is unlikely to have such consequences.

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.

[boniblithe.livejournal.com]

But what recourse does a fan have if the C&D letter goes to their ISP, which shuts down the site for violation of a ToS agreement? It seems to me more and more that ISPs are shutting down the fan sites (the vidding sites anyway) and the site "owners" are not getting the C&D letters directly. That has happened twice in the last few months to people I know.

[jacynrebekah.livejournal.com]

*applauds*

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.

[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?

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?

[kaiz.livejournal.com]

Thank you for interjecting a dose of much-needed legal information into the discussion. While I realize that many fans have concerns about this issue--and to be sure, it's an emotional one--I think that in the absence of sensible legal information it is often easy to let our fears escalate and get the better of us.

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

Marginality and Legality

[maygra.livejournal.com]

I thank you as well, and yeah, it does reassure me somewhat -- although honestly, I can't shake the feeling that I don't want to be the test case. And it's not really that I fear them coming after my house, my savings, my 401k or my cats. I do think they are pretty much aware that for the most part, fen aren't trying to cash in in any tangible way on their franchises, but still. I think moderation in all things is a good thing and I'd prefer less attention than more.

But I sincerely thank you for such a complete and well thought out repsonse. I'll practice being less paranoid.*g*

[frances-potter.livejournal.com]

Thanks very much for the post and for the information in it. It is interesting to read things from a legel point of view rather than just a fandom one.

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.

[hermorrine.livejournal.com]

I just wanted to express my thanks to you for writing this out - I have worked for lawyers in the past and perhaps that's part of the reason for my "not panicking until I see the whites of their lawyers' eyes" attitude, but I also think it's partially common sense.

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.

[darkrosetiger.livejournal.com]

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.

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.

[(Anonymous)]

Not the Straight Wite Guy demographic! *snerk*