Fandom and Copyright

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by Julie

links

Chilling Effects - Fan Fiction FAQ

short scholarly bibliography

AuthorsLawyer on Fan Fiction

fandom issues links, including plagiarism and legality

commercializing fan production...

my general lecture on fandom

POWERPOINT SLIDES:

select features of late capitalism

a third technological revolution (electronics, synthetics, computerisation, biotech) and accelerated technological innovation

a shift in production from manufacturing to services and information

a shift of value to non-material goods like intellectual property and brand identity

intensified monopolistic and oligopolistic competition for superprofit in world markets; the globalization of financial capital, commercial capital and production capital

accelerated turnover of capital and speculative investing; permanent currency inflation and growing debt levels

sources: http://en.wikipedia.org/w/index.php/Late_capitalism + Jameson, David Harvey, Daniel Bell

fandom precursors

historical traditions of derivative literature: midrash; tales of Arthur; continuations of Canterbury Tales, Austen and Carroll novels, Sherlock Homes

postwar, post-structuralist breakdown in modern conceptions of the autonomous, bounded work, and the creative, unified subject within an increasingly intertextual and media-saturated context

primary contemporary incarnation of fan production ? fiction and visual art based on mass media texts (TV shows, movies, books, celebrities, etc.) ? dates from the first run of Star Trek in the 1960's, and burgeoned throughout the 70's and 80's in the form of print zines circulated at fan conventions or directly through the mail

the internet...

online fandom

http://fanfiction.net/cat/208/ suggests some of the diversity of contemporary fan production:

usenet groups for fan fiction were up and running by the early 1990's. the ones that still exist (like alt.startrek.creative (1991), still the central clearinghouse for Trek fanfic) have largely transitioned to email lists http://groups.yahoo.com/group/ASCEML

bulletin boards in their web incarnation http://forums.televisionwithoutpity.com/index.php?showforum=586

personal web sites and archives (ff.net) (+ webrings)

livejournal http://community.livejournal.com/newbieguide/4154.html

one of the aspects of TV that particularly invites fan practice is its seriality ? TV's defining temporality of liveness, presence, and immediacy – its constant availability as a world we can turn on and off at will makes it seem as if its characters exist in a time that runs parallel to our own. The internet is even more uninterrupted, more fragmentary and diffuse than television, which may contribute to its aptness as a medium for fandom.

academic perspectives

first academic article on fan fiction (afaik) is Russ, Joanna: "Pornography by Women for Women, with Love" (1985)

Jenkins' book Textual Poachers (1992) = one of the earliest and most influential full-length studies of fan fiction, and he remains the best-known scholar of the phenomenon (along with Constance Penley):

  • arguing against popular and academic "stereotypes of fans as cultural dupes, social misfits, and mindless consumers," he proposes that "fans actively assert their mastery over the mass-produced texts which provide the raw materials for their own cultural productions and the basis for their social interactions. In the process...they become active participants in the construction and circulation of textual meanings" (23-24). This formulation goes one step beyond understanding popular reception only as resistant reading--Jenkins allows that fan writers are producers (in some sense) of culture. This framework draws on Michel de Certeau's "poaching" metaphor, which conceptualizes reading not as the passive absorption of authorial meaning passed down from positions of dominance, but as "an ongoing struggle for possession of the text and for control over its meanings" (24).

the problem with poaching

implies a hierarchy of lords and serfs: In Jenkins's mode of reading, fan fiction is always subordinate to its parent text; he writes that "Because popular narratives often fail to satisfy, fans must struggle with them, to try to articulate to themselves and others unrealized possibilities within the original works. Because the texts continue to fascinate, fans cannot dismiss them from their attention but rather must try to find ways to salvage them for their interests" (23). In other words, it is fans' torturous enthrallment to an inadequate mass media that constrains them to add their own ancillary narratives to it.

on the other hand, Jenkins is willing to countenance certain aspects of the breakdown of the consumption/production binary:- "For fans, consumption sparks production, reading generates writing, until the terms seem logically inseparable" (451)- "fan writers suggest the need to redefine the politics of reading, to view textual property not as the exclusive domain of textual producers but as open to repossession by textual consumers" (469)

BUT, his exclusive focus on fan activity as an intervention at the site of reception ? that is, mass media texts as raw materials for producing communities and popular mythologies that nonetheless remain derivative ? leaves the ostensibly unilateral power of the TV industry to produce mass media texts essentially intact. Thus, it excludes the question of how fan production is actually central to media commodities ? because TV depends economically on the interpretive work of its audience. And the question of how fan production participates the widespread challenge to control over the boundaries of information, which must be somehow fixed in order to package it as a product (e.g. peer to peer file sharing).

Sara Gwenllian Jones

"intricately bound up with fan culture's move into cyberspace and with the possibilities opened up by digital technologies... from the outset, the virtual star is in a sense 'outside' itself... [It] marks a profound shift in the balance of creative power between television industry and television audiences. Xena's status as a virtual star complicates her origins as a piece of copyrighted intellectual property... [She's] a text with innumerable 'authors' that is written and realized through processes of imaginative translation that cannot be effectively policed or prohibited" (20)

which brings us to copyright...

fair use

To decide whether a use is "fair use" or not, courts consider

  • (1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes
  • 2) the nature of the copyrighted work
  • 3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole
  • 4) the effect of the use upon the potential market for or value of the copyrighted

There is a strong argument that many fan fiction stories are transformative since they create a different persona and set of events for the character. To create a new story cannot be seen as the same as posting video clips on a website. There must be a balancing between protecting copyrights in order to encourage innovation by authors and between allowing works to be in the public domain to allow creative uses.Whether a court will view this as the case for a particular work of fan fiction depends on how much of the story relies on copyrighted materials, whether the story is sold, or affects the market for the copyrighted work, and other factors. There is no easy answer to the question, which is why it is often a good idea to consult a lawyer who can assess the particular facts of your case.

source (also for next slide): http://www.chillingeffects.org/fanfic/faq.cgi

redress and penalties

If the court finds that you unlawfully copied, it has several possible options. First, and most likely, an injunction could be granted to prevent the author from publishing and distributing the FanFic. The infringing materials could even be destroyed. The court also has the power to award monetary damages. The amount of damages would depend on the lost revenue suffered by the copyright owner and possible profits earned by the FanFic author.

Different companies have different methods in dealing with FanFic. Some, like Paramount Pictures, see that FanFic could actually help boost their sales and so encourage the writing of FanFic. Other companies are presumably waiting for more business information and legal clarity before making a decision. This is in sharp contrast to Fox Television and Viacom, both of whom resort to harsh cease-and-desist letters against unauthorized Web site creations by fans.

"In order for a corporation to win a cease-and-desist order against a FanFic author, it would have to prove that it was suffering financial damage, something that is hard to prove since much of FanFic actually helps boost sales. This has helped motivate companies to go after ISPs. Being caught in the middle of the battle, ISPs will often put pressure on the FanFIc authors in order to avoid liability, a decision which often leaves FanFic authors without any choice but to remove the supposedly offending material. Under the safe harbor provisions of the DMCA, you as the author are entited to notice that the ISP might take your story down, and you can issue a counter-notice claiming that your work is not infringing.

further issues

there is little to no legal precedent dealing specifically with non-commercial fanfic – only a few cases about derivative profic and (usually visual) parodies

Trademark law may also apply: Trademark applies to character names and representations of characters
moral right: VARA provides artists with three rights in connection with covered art works. The "right of attribution" is the right to accurate identification of the creator of the work. For a work of "recognized stature," VARA grants the artist's right to prevent destruction of the work. For any VARA-covered work, the "right of integrity" gives the artist the right to prevent modification or destruction of the work if the alleged violation of integrity is prejudicial to the artist's honor or reputation." In a sense, people who have a moral objection to fanfic are asserting the right of integrity. However, VARA does not apply to literary works, movies, or TV shows, so this is an ethical and not a legal argument. (source: http://executrix.livejournal.com/56530.html)

Fans haven't organized into activist communities around copyright like other communities of cultural producers – why??

law vs. ethics vs. behavior

Producers' legal rights are acknowledged without, generally, being respected. The rights of the copyright holder include the right to control distribution, to make money off a product, and to create works deriving from it, among others. These are undisputed, whether or not we agree that it is proper and morally correct to have such rights, and to exercise them.But a fan's exercise of respect for producers' rights varies depending on the right in question, the identity of the producer, the history of the community and the interaction between the fans and the producers (if any), the risk of penalty, and what the fan stands to gain... In effect, the community standard of fandom is that the legal right of the producers to control derivative works is irrelevant... This is a realpolitick kind of response: but it's neither logically nor ethically consistent, particularly if the producers of the source are bound by their own legal obligations not to speak on the matter. Why should Anne Rice get the respect and CS Lewis not?... The fact is that in a digital age, in order to share the product of your creativity, you have to give away more than just access: you have to give away physical ownership. And that throws all the old precepts into question. (source: http://cofax7.livejournal.com/331421.html)

copywrong?

There's an established theoretical context of fan work that has diffused enough to be shared, at least to some degree, by many fan producers. In this narrative (Jenkins' Texual Poachers being its seminal moment), fan reappropriations of mass media texts resist the authority of media producers to determine their uses and meanings – the political assertion being that fans, not corporations, "own" these materials.
it's about a frustration with the whole economic system of private property that circumscribes our activities, which places them in a legally subordinate (and indeed closeted) position. I'm pretty furious that fans, who perform the core work that supports the media industry by endowing its products with the meanings and pleasures that stimulate their consumption – who are essentially doing exactly what late capitalism tells them to do – are then told that such activities are questionable and borderline illegal (I'm tempted to make an analogy to the Marxist feminist crusade for recognition of and compensation for women's domestic labor, here, but that's probably in bad taste). so my real fantasy is not "don't you like this pretty thing I made?" it's "see, this thing is MINE not YOURS" – except it IS theirs in several senses, and hence my conundrum about what kind of guerilla advocacy to do around that (if any).

CONCLUSION

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