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copyright

[QUOTE] From Ba Zi, 9c. Fair Use and the Translation Stranglehold

I’d like to draw your attention back to an image I had used in another context, namely about boys/girls and the assumptions about/representations of in manga, and talk with y’all a little about Zolo. Now, you have to bear in mind that my first encounter with One Piece was a non-licensed translation dub of the TV anime. After that, I began to regularly follow the series while living in Japan, so I mostly read it in the weekly Shōnen Jump‘s I would dig out of garbage cans and recycle piles on Tuesdays (for the trash cans) and Wednesdays (for the recycling piles). At no point was it ever unclear to me that ゾロ was a take on the Johnston McCulley character Don Diego de la Vega, aka Zorro. I was a huge fan of the 50s Zorro television show that ran on syndicated TV when I was growing up. There was no mistaking: ゾロ was Zorro.

Fast forward a few years, and I am picking out the books for my “What is Manga?” class, for which I decide to use Oda’s One Piece as representative of the shōnen demographic. A few days before class, I sat down to read the licensed translation, so as to refresh my memory, and I come across the follow anachronism: Zolo. After a few minutes of obligatory “wat”s, I finally came around and tried to think why it was they would have done this. When One Piece was scanlated, the name was at least translated as Zoro, so the similarity would be apparent. Was this an attempt to bring back Rolo’s, which, while delicious, I don’t see flying off shelves nowadays awash in candies more flashy marketing than chocolate and caramel? It was actually just before–or perhaps even in the midst of–the class in which we discussed One Piece that I realized there was a very simple reason why you would translate ゾロ as Zolo: licensing. Zorro, like Mickey and Donald and Superman and Kitty-chan, is a diligently guarded media commodity, so, while one might conceivably be able to get away with aping Zorro in Japan, it would be much harder to get away with this in the US and the larger English language market, where Zorro media are still being produced to this day.

Ba Zi, 9c. Fair Use and the Translation Stranglehold

[QUOTE] From Heidi Tandy paraphrased by Rebecca Tushnet, Penn symposium: fan fiction

Fan creativity is as old as storytelling. Distribution is a lot wider these days, though. If you want a live singalong of Once More with Feeling you may need to inquire about rights. (…) Legal concepts of transformativeness have broadened over the past 15 years, but there’s still a lot of confusion and paranoia—in part because fanworks are created by 12-year-olds and 90-year-olds with different levels of knowledge.

Heidi Tandy paraphrased by Rebecca Tushnet, Penn symposium: fan fiction

[META] Can Fandom Change Society? (by PBSoffbook)

Can Fandom Change Society? (by PBSoffbook)

Before the mass media, people actively engaged with culture through storytelling and expanding well-known tales. Modern fan culture connects to this historical tradition, and has become a force that challenges social norms and accepted behavior. Whether the issue is gender, sexuality, subversiveness, or even intellectual property law, fans participate in communities that allow them to think outside of what is possible in more mainstream scenarios. “Fannish” behavior has become its own grassroots way of altering our society and culture, and a means of actively experiencing one’s own culture. In a sense, fans have changed from the faceless adoring masses, to people who are proud of their identity and are stretching the boundaries of what is considered “normal”.

(more)

[QUOTE] From Rebecca Tushnet, Economies of Desire: Fair Use and Marketplace Assumptions

Creativity, including remix creativity, is part of a good life. It should be valued for itself, not tolerated. Creativity should be a favorite of the law even if we do not need to worry about incentives or disincentives (chilling effects). Incentive stories, because they do not explain creativity, can mislead us about the value we want to protect. Under the First Amendment, we protect religious conviction not only, and not even primarily, because we worry about the chilling effects of religious persecution. Devout believers have been willing to go to jail and even die for their causes; they’re hard to chill. We protect religious faith because it’s so important, and a core wrong of suppression is its disrespect of the believer. Likewise, respect for creativity, and for the possibility that every person has new meaning to contribute, should be at the core of our copyright policy. Instead of monetary rewards or even artistic control of how works are transmitted to others as our highest value, we should aim for policies that maximize participation — even when that changes the mix of economic winners and losers. Economic reward and control rights are likely to be part of the proper balance, but only part.

Rebecca Tushnet, Economies of Desire: Fair Use and Marketplace Assumptions

[QUOTE] From Mike Masnick at Techdirt, Arthur Conan Doyle Estate Sued To Show That Sherlock Holmes Is Public Domain

A little over three years ago, we had a discussion concerning whether or not Sherlock Holmes was in the public domain. By our understanding of the law, the character absolutely is in the public domain. There is one remaining book — The Case-Book of Sherlock Holmes — which contains a few stories that are still covered by copyright, but the characters and most of the written works are in the public domain. However, the legal representatives of the Sir Arthur Conan Doyle Estate use the fact that one book is still held under copyright to argue that the character is still protected until (at least) 2023. Of course, as with things like Happy Birthday, even if it should be in the public domain, if there’s some corporate entity insisting that it’s covered by copyright, you’d have to go to court to prove otherwise. And most people don’t want to bother.

Thankfully, that just changed when it comes to Sherlock Holmes. Sherlock Holmes scholar, Leslie S. Klinger, was working on a book (with Laurie R. King) called In the Company of Sherlock Holmes, detailing “major mystery/sci-fi/fantasy authors inspired by the Holmes tales.” However, the Conan Doyle Estate contacted their publisher, Pegasus Books, demanding a license fee, and saying if they weren’t paid, they’d make sure that no major distributors would sell the book.

(…)

Like too many publishers, Pegasus freaked out and refused to publish the book at all, so Klinger has taken it upon himself to file for declaratory judgment.

(…)

When the estate threatened Klinger, he correctly explained that no license was needed, but he’s still dealing with the fallout from his publisher getting cold feet. Thus, he’s asking the court to state, definitively, that the character is in the public domain. Kudos to Klinger for taking this on. We need more people willing to stand up for the public domain. Also, jeers to Pegasus for not being the one to take this on and for freaking out over the bogus threat.

www.techdirt.com/articles/20130215/15093722002.shtml

[LINK] Professional Author Fanfic Policies – Fanlore

fanlore.org/wiki/Professional_Author_Fanfic_Policies

This page is such interesting reading, especially the patterns that emerge when authors talk about the reasons why they changed their minds about fic, why they allow it but don’t read it, and so on. Several authors (Ellen Kushner, Poppy Z. Brite) mention that they once believed fic endangered their copyright in their works, but have since learned that that fear is false. Others, like Orson Scott Card and Jennifer Roberson, still seem to be clinging to it to some degree. Many more authors (Sarah Rees Brennan, N.K. Jemisin, Marjorie M. Liu, Diana Peterfreund, Kaja & Phil Foglio, Katherine Kurtz) mention that they don’t read fic for legal reasons, Many others mention that they read and write fic, or sometimes even comment on it.

Most of the sources cited for the authors’ comments seem to be fairly recent. It’s interesting to see that even today, there’s so much variety in how pro authors understand the relation between fanworks and copyright law. You’d expect that there would be at least some sort of professional consensus by now, but it seems like echoes of the confusion caused by the Marion Zimmer Bradley Contraband incident are still around.

[QUOTE] From From Casey Fiesler, Everything I Need To Know I Learned from Fandom: How Existing Social Norms Can Help Shape the Next Generation of User-Generated Content, p738-739

The question of whether or not fan fiction could be considered fair use has never been addressed by the courts, but some legal scholars have suggested that it should be a categorical exception. While the public generally believes that a distinction exists between commercial and noncommercial use with regard to copyright, this perception has never been accepted as law.

(…)

Because “[t]he standards for invoking the fair use doctrine are so vague,” fear of litigation may chill the creation of fan fiction altogether. Fan fiction came under the scrutiny of copyright holders as early as 1977. More recently, Warner Brothers made headlines by sending cease-and-desist letters to teenagers running Harry Potter Web sites. However, no fan fiction case has ever gone to court, either because copyright holders have decided to ignore them or because of fan authors’ inabilities to contest cease-and-desist demands. In fact, most fan fiction writers would prefer to keep it that way.

www.cc.gatech.edu/~gte115v/JETL_Fiesler.pdf

[QUOTE] Fifty Shades of Grey in Public Domain?

rivkat:

fyeahcopyright:

So Universal is suing Smash Pictures, a porn company who’re making a “parody” of 50 Shades, which they are, uncreatively, calling “Fifty Shades of Grey: A XXX Adaptation”.  (Obvious trademark issues, hence the suit.)

If this was just a suit filed by Universal to block distribution of this porn film, it’d be relatively run-of-the-mill, but because of the absolute ridiculousness of Smash’s lawyers – or possibly their PR flacks nudging their lawyers to ridiculousness – it’s becoming interesting!

Read more at http://fanhackers.tumblr.com/post/44698421952/fifty-shades-of-grey-in-public-domain-the-mary-sue

[REQUEST] Anyone know of any discussions on/proposals for copyright licenses that cover fanworks?

I’m looking for examples of discussions on/proposals for special copyright licenses that would cover the creation of fanworks. There have been quite a few of these, though I don’t remember most of them. For instance, there’s the CC-based fanwork license proposed by mangaka Ken Akamatsu and manga publisher Kodansha [1]. There’s also existing licenses, like whatever Kadokawa Publishing is doing exactly, or Jim Butcher’s fic license, which is apparently kind of dubious [2][3]. There’s been a lot of discussion on making better licenses for derivative works in general in academic and copyright reform circles, but although many of those could apply to fanworks, very few of them seem to be considering the particular characteristics of things like fic. They also seem to be mostly about regulating the relationship between derivative works, not about regulating the positions of derivative works vs. other derivative works – things like whether or not the writer of a fic gives blanket permission to write sequels, make podfics etc. I’m looking for discussions/proposals from anywhere – fandom, industry, academia, and so on. Thank you very much! [1] hilarious gtranslated page at translate.google.com/translate?hl=en&sl=ja&tl=en&prev=_dd&u=http%3A%2F%2Fwww.itmedia.co.jp%2Fnews%2Farticles%2F1212%2F13%2Fnews055.html [2] www.jim-butcher.com/posts/2010/new-fanfiction-policy [3] Discussions of Butcher’s policy at fail-fandomanon.livejournal.com/30790.html?thread=139385158#t139385158 Brought on by discussion at elf.dreamwidth.org/673250.html?thread=7983074#cmt7983074

[LINK] Discussion of Fanhackers’ “no quoting fannish meta without permission” policy and about fanwork permissions in general

elf.dreamwidth.org/673250.html

Thoughtful critique of our “no quoting fannish meta without permission” policy, and discussion in the comments about how to make it easier for fans to indicate that what sort of re-use of their work they’re okay with (or not).

[QUOTE] From Lawrence Lessig, Remix

We’ve already seen a similar frustration brew in the context of “fan fiction,” particularly around the Star Wars franchise. As with the Harry Potter story, Lucasfilm learned early on that there were millions who wanted to build upon Star Wars, and few who thought themselves restricted by the rules of copyright. Like Warner, Lucasfilm recognized that these fans could provide real value to the franchise. So under the banner of encouraging this fan culture, Lucasfilm offered free Web space to anyone wanting to set up a fan home page.

But the fine print in this offer struck many as unfair. The contract read:

“The creation of derivative works based on or derived from the Star Wars Properties, including, but not limited to, products, services, fonts, icons, link buttons, wallpaper, desktop themes, online postcards and greeting cards and unlicensed merchandise (whether sold, bartered or given away) is expressly prohibited. If despite these Terms of Service you do create any derivative works based on or derived from the Star Wars Properties, such derivative works shall be deemed and shall remain the property of Lucasfilm Ltd. in perpetuity.”

Translation: “Work hard here, Star Wars fans, to make our franchise flourish, but don’t expect that anything you make is actually yours. You, Star Wars fans, are our sharecroppers.”

(…)

But though the objective of profit is not a problem, the manner in which that profit is secured can be. The respect, or lack of respect, demonstrated by the terms under which the remix gets made says something to the remixer about how his work is valued. So again, when Lucas claims all right to profit from a remix, or when he claims a perpetual right to profit from stuff mixed with a remix, he expresses a view about his creativity versus theirs: about which is more important, about which deserves respect.

Crosspost: fanhackers.tumblr.com/post/44348237435/weve-already-seen-a-similar-frustration-brew-in

[QUOTE] From Hye-Kyung Lee, Cultural consumer and copyright: a case study of anime fansubbing

Similarly, fansubbing has been regarded as an equivalent for TV. In the anime industry context, the role of TV is crucial in nurturing consumer demand for DVDs. For example, the Japanese anime industry witnesses fans normally testing the anime via TV viewing and then deciding on their purchase of DVDs and Blu-ray DVDs (my interview with two commentators from the Japanese anime industry). Hence, Japanese anime producers have traditionally treated TV broadcasting as a form of advertising. While lamenting the lack of TV coverage of anime in the United States, English fansubbers see their activity as serving as free promotion. Interestingly, this aspect of fansubbing was widely acknowledged by the US anime industry. Until recently, the industry was generally nonchalant towards fansubbing but tended to agree on its viral marketing and market tester aspects.

(…)

Witnessing the expansion of digital fansubbing and the ubiquity of fansubbed anime on the Internet, the industry has broken its silence and begun challenging fansubbing’s legitimacy. It now defines fansubbing as piracy, and asks fans to stop making and using fansubs (Smith 2007).

Crosspost: fanhackers.tumblr.com/post/44211750695/similarly-fansubbing-has-been-regarded-as-an

[QUOTE] From Rebecca Tushnet, Economies of Desire: Fair Use and Marketplace Assumptions

(…) fan experiences of creativity are also incompatible with control-based theories of copyright positing that authors’ personalities are harmed by unauthorized uses. Julie Cohen has pointed out that the incentive model, in which copyright is a vital driver of creativity, “justifies drawing firm distinctions between authors, on the one hand, and consumers, imitators, and improvers on the other.” Once that move has succeeded, broad rights to control copying, public distribution, and derivative works follow as night follows day.

Crosspost: fanhackers.tumblr.com/post/41516247497/fan-experiences-of-creativity-are-also

[LINK] Legal analysis bibliography on Fanlore

fanlore.org/wiki/Legal_Analysis

There have been a number of articles in law reviews and legal publications addressing various fanwork-related issues, beginning with fan fiction and gradually expanding to other fanworks. This is a bibliography, with links to the full articles where available, in chronological order by year, alphabetical by author within the year. The citation format is close to Bluebook. (From the page)

[META] On regional releases and disrupting international fandoms

Since a few weeks back, some blogosphere hand-wringing has been going on about how Game of Thrones is the most pirated show of 2012. The second season has been downloaded via torrents about 25 million times.

Many people in the discussion are balking at HBO’s refusal to offer legal streaming or downloading options for a wildly popular show that everybody and their dog wants to see. Especially because the news about Game of Thrones‘ “top” position in the torrenting charts comes after months of reports about how HBO thinks digital-only TV viewing is a temporary phenomenon and is determined to keep its content accessible only to cable subscribers. Matthew Inman at The Oatmeal made a much-tweeted comic about he tried to pay to download Game of Thrones through all imaginable means, then gave up and found a torrent.

I had a similar experience, and many of the options Inman mentions aren’t even available to me because I don’t live in the US. As Forbes and a bunch of honest people on Reddit also pointed out, it’s incredibly hard to see Game of Thrones legally if you live in a country where getting hold of HBO is impossible or prohibitively expensive. I haven’t managed to figure out which it is over here in Japan; this provider claims to offer HBO in its $65-a-month cable package, but the channel isn’t in the actual lineup. Since TV was out, my only hope were Amazon or iTunes. Amazon doesn’t have digital downloads of Game of Thrones at all. iTunes teased me with the possibility of buying the first season, until I got to the last step in the purchasing process and was told that my Belgian iTunes account wasn’t allowed to buy this show. At that point, I felt like I was being quite thoroughly mocked.

Now, I haven’t gone on to get Game of Thrones via a torrent. I love the books and what little I’ve seen of the series, but I’m not so fannish about it that I feel a desperate need to watch it together with my US friends. The same goes for The Avengers. About three quarters of all the people I know online are going wild about it. I want to see it, very much, but it won’t be in Japanese cinemas until August.* Maybe I’ll still be fired up about it enough to want to see it on the big screen then, but maybe I’ll just wait until it shows up in iTunes, because my enthusiasm will probably have dampened quite a bit by then.

But while I’m just lukewarm enough about Game of Thrones and The Avengers to wait until they reach me in a legal way, I have used less than legal means to get my hands on certain other shows. I was in the fandoms of those other shows, and not watching the new canon content with my fellows would have made it incredibly hard for me to continue participating in those fandoms. Fans who are really, deeply invested in a show that’s broadcast only overseas aren’t going to get off the internet, let all the initial excitement pass them by, and wait for the DVD to come out in their country months later. That’s not how it works anymore. In my academic writing, I constantly have to remind myself to talk about “English-speaking fans” or “Japanese-speaking fans” when discussing online fandom, because it’s often impossible to draw any national lines. Limiting releases to certain regions of the world at certain times may have been doable in the past. But now that very many fans are on the internet, that sort of commercial strategy is seen as an annoyance that must be dealt with, lest it disrupt the smooth and happy functioning of the fandom. When a new piece of canon comes out, the first order of business is often to get everybody up to speed by spreading around downloads or streams of the new episode for those fans who couldn’t access the “main” broadcast for whatever reason. The content must flow, or the squee can’t commence.

I see just that happening with The Legend of Korra, which I wrote about before. Nickelodeon tries hard to interact closely with Korra fans: there’s an official Tumblr, there was a contest before the premiere that allowed fans to see the first two episodes early, and the network puts up a high-quality stream of every episode a day or so after it’s broadcast. However, those streams are region-locked, as were the contest reward episodes. Non-US fans can participate in the contests, but the fact that they have to be in the US to actually see their prizes is buried somewhere in the rulebook. For all its laudable efforts to connect with fans, Nickelodeon still ignores that many of the truly enthusiastic Korra fans it’s talking to via Facebook and Tumblr are not actually in the US, and that for them, too, the very point of watching media is to watch it together with others and share in the excitement. To be there when “it” happens.

Are people being too demanding? It’s certainly asking a lot for media companies to adapt to a “give everybody everywhere everything now” landscape. This environment is wildly different from what companies are used to, and it’s not surprising that it takes them a long time to find their place in it.

But fans who have those high expectations aren’t spoiled brats or entitled freetards. They just expect their commercial media to behave like the rest of the internet. It takes me only minutes to put a video online in a place where the whole world can see it and share it around. There are reasons why HBO or Nickelodeon don’t do the same, some of them very good reasons, but those reasons simply don’t make sense for internet users who notice that everything except their commercial media content is easily accessible.

After years of waiting for media companies to catch on and get used to YouTube, their failure to distribute things in a way that fits with how the rest of the internet works becomes more and more incomprehensible to their international customers. As Techdirt noted when Fox let “Touch” premiere in about 100 countries at the same time earlier this year, it’s rather mind-boggling that a show (one show!) being released simultaneously across much of the globe is cause for excitement in the year 2012. I understand what’s behind the decision to region-lock online Korra episodes, but that action still seems utterly daft to me. I can’t imagine that anyone at Nickelodeon honestly expected that fans wouldn’t unlock those episodes by any means necessary, so the fact that they locked them in the first place seems just annoying and pointless. People see that fansub groups can make and distribute a high-quality translation of an anime episode only days after it airs in Japan, and on a certain level, it makes no sense to them that commercial overseas anime distributors can’t provide the same speed and quality as a handful of amateurs. Yes, there are some good reasons for those delays, reasons that many internet users often don’t seem to get. But the reason they don’t get it is because they can’t imagine anymore where the problem might possibly lie. No amount of public education of the kind that copyright enforcement-oriented agencies keep clamoring for is going to make this situation look any less absurd to regular people on the internet.

Many have argued that in this day and age, it’s nonsense to release media with any sort of locks on them – among other reasons, because people will easily dodge those locks and learn nothing except that media companies like to annoy them. In the case of media companies trying to connect with international fans and persuade them to watch content legally, it may help if they kept in mind that people on the internet aren’t just a mass of individuals who each might decide start pirating at unpredictable moments for their own personal nefarious reasons. When and why an individual wants to watch a show enough to torrent it has a great deal to do with who they’re watching it with. Today, keeping a show inaccessible to parts of the world often means throwing a wrench (an easily removable but irritating wrench) into the social interactions of the very fans one is trying to court. It seems unrealistic to expect that people will have no problem with international release schedules that disrupt their most important socializing times, for no good reason they can discern.

(*Hollywood movies often seem to come many months late to Japan. I’m not an expert on the Japanese film or cinema business, so I don’t know why this is. My film-oriented colleages at university didn’t know either. Any information would be much appreciated.)

[META] Living in a Den of Thieves (Notes Towards a Post on Big Content)

Two weeks ago, in the wake of the hacker collective Anonymous shutting down U.S. government and Big Content websites in avowed revenge for the U.S. Attorney General’s taking down the upload service MegaUpload, I asked my Twitter followers (only half in jest) whether I would one day be writing an article about the Internet War of 2012. The consensus was “Quite possibly!” but even a cursory glance over the last two weeks or so of events around the Internet and the public domain reveal that the conflict between those who are advocating for more open laws and formats around content, and those who want to lock content down and throw away the key on “pirates,” is about more than one upload service, or even more than one frighteningly broad piece of “anti-online piracy” legislation (and no, that link isn’t talking about SOPA/PIPA).

Fandom intersects with all of these events in a number of large and complex ways, and as a global phenomenon, it’s no surprise that fans in different parts of the world have had different reactions to various recent developments. Just among my digital acquaintances, reactions to MegaUpload, for instance, have ranged from the general sentiment that its operators’ alleged violations were so flagrant that they deserved to be indicted, to noting the detrimental effect the demise of file-sharing sites has on emerging economies in particular, since people working in emerging economies literally cannot afford to legitimately buy the media that Big Content sells.

The rise of “intellectual property” rights over the past century or so is part and parcel of the neoliberalization first of so-called advanced industrial societies, and then the rest of the world; the shredding of social safety nets globally; the commercialization of scholarship and the reduction of the value of all knowledge to the price it is projected to fetch in the so-called “free market”; the patent-ization of scientific research part and parcel with increased corporate profiteering therefrom. IPR are used systematically to disenfranchise and disempower vulnerable groups at all levels of societies globally, and then, the disenfranchisement complete, to sell that content back to those groups at immense profit–but only at fair market price, of course.

As a historian, I’m painfully aware that today’s current, very stringent global intellectual property regime is very much a recent and contingent phenomenon, and as a classicist and a fan, I was particularly dismayed to see the U.S. Supreme Court rule in favor of copyright maximalists in Golan v. Holder, finding that works could be legally re-copyrighted and removed from the public domain. It would be foolish, as a historian, to claim that fandom predates the age of mechanical reproduction and the rise of seriality in storytelling, but one doesn’t have to be much of a literature scholar to see that creativity doesn’t exist in a vacuum, and that creative works have always been inspired by one another. If Vergil had had to pay money to Homer’s estate to use characters from The Illiad, there probably would have been no Aeneid, and that loss wouldn’t just have diminished ancient Greek and Latin poetry.

I mentioned my work for the Organization for Transformative Works to a mutual acquaintance (the business manager of a well-known fantasy author) recently, and it was almost comical how my interlocutor’s defenses rose the instant I uttered the words “fair use.” I understand, and absolutely support, the desire and right of creators to make money from their own creative works, but one of the things that I think tends to get lost in these discussions is the fact that overall creators aren’t being very well served by Big Content. In the first place it’s a myth, as someone on my Twitter feed observed, that content is only created by “professionals”; and in the second place, Big Content is not in the business of giving creators money: as an industry, it’s in the business of making money for itself. Advocates for SOPA/PIPA and ACTA like to position themselves as defending the rights of creators, but the current intellectual property regime is set up to favor corporations. Furthermore, the global scope of that regime, and the way in which restrictive additions in one part of the world tend to be taken up by the rest of its participants (Golan v. Holder was held up as an instance of bringing U.S. law into line with global practice, and actions in the MegaUpload case were taken as far away from the States as Hong Kong and New Zealand) only increase the margin of that favorability.

Fandom, to try to knit the two halves of this post into a coherent union, is very much somewhere in the vast creative territory between outright plagiarism–which no one, I think, would support or condone–and the avowed creative debt of explicit borrowing and that position has only become more difficult to maintain in recent years. The OTW’s work to extend the Digital Millennium Copyright Act exemption for vidding that we won in 2010 is an excellent example of how difficult it is to carve out a legal space for fair use fan practices even under current law (I invite you to sign the petition to uphold the right to create remix videos before February 10, 2012, cosponsored by the Electronic Frontier Foundation). I’m proud of the OTW’s past and continuing work in this area, but the events of the past fortnight are more than sufficient proof that the battlefield is anything but stagnant, and vigilance remains the price of the very limited liberties we now possess.

[META] In Search of the Hybrid Economy

In the current issue of Transformative Works and Cultures, my friend Nele Noppe has a piece on Why we should talk about commodifying fan work. In her article, Noppe reviews much current English-language scholarship that considers the possibility of some kind of legal and legitimate “hybrid” fannish economy emerging, and concludes that, while such an economy may very well emerge at some point, for a variety of reasons, it’s not here yet. In particular, Noppe notes that

A final reason why a viable hybrid economy for fan work is unlikely to emerge soon is that many of the fans who would power it may not be prepared to imagine the possibilities, advantages, and disadvantages of such a system. Up to now, fans and fan scholars have rarely even speculated about the potential inherent in linking fan work to commodity culture. … The most important question here is not whether fans will at some point be given the option to commodify and monetize their works, but how the fan community in general will deal with new modes of fannish production emerging alongside the traditional gift economy.

It strikes me, however, that the issue here may not be a question of waiting for new modes of fannish production to emerge, but of recognizing the fact that, in many cases, they already have emerged.

Noppe mentions the example of the Japanese dôjinshi market several times in her piece, quite sensibly in light of the fact that the fannish/”amateur” dôjin production sphere is perhaps the pre-eminent example of a hybrid economy. In Japan, fan-created comic books and, in recent years, animation, video games, and other forms of media have not only been wildly successful in the semi-sequestered fannish economy, but have been picked up by professional companies for further production and wider distribution, going on to launch their creators into fully professional careers and spawning mega-hit transmedia franchises that have defined whole eras in the Japanese contents industry. Moreover, despite a lack of explicitly permissive laws, the line between professional and “amateur” or fannish production in Japanese media is often quite fuzzy: professional creators routinely sell fan works of their own professional media creations, or even actual professionally produced elements of their creation such as production stills, at dôjin (“like-minded”) markets, the largest of which is Comiket in Tokyo.

Although the Japanese contents industry undoubtedly possesses the most highly developed “hybrid” economy in the Laurence Lessig-derived sense that Noppe discusses, there are ample signs that the English-language contents industry is already starting to develop in a similar direction, particularly in the world of book publishing. Multiple professional authors working today in YA and SFF avowedly came out of fandom, whether putting their fan fiction-honed writing skills to work on wholly original works or “filing off the serial numbers” and selling works that were originally fannish as entirely “original” novels and stories. Moreover, while it seems that formerly professional authors were reluctant to discuss their roots in fan fiction, more and more authors (not coincidentally, overwhelmingly female) are not only willing to own their fannish roots, but to “cross streams” and jump back into fandom for exchanges such as Yuletide, among other forms of fannish activity.

At the same time, the rise of ebooks and of high-quality self-publishing operations such as Lulu have made it easier than ever for fans to make their content, whether original or fannish or a hybrid of the two (never, as the above discussion should make clear, very clearly separated in the first place), available to others for free, at cost, or for profit with very little extra effort. These developments are transforming not only fandom, but also the contents industry, leading not only to reactionary legislative efforts such as the Stop Online Piracy Act (SOPA) in the U.S. Congress but also to true innovation in both the fannish and professional contents spheres, some of which Henry Jenkins has discussed in his continuing investigations of professional transmedia storytelling.

So, where is all this going? As a historian, I am professionally allergic to predicting the future, but inasmuch as these developments are happening right now, it seems clear that some kind of rapprochement is in order, not only between fannish and professional content creators, but also between fans and themselves. English-language fandom has historically been highly leery of anything that seems to violate the spirit of the “fannish gift economy,” and with good reason; the non-commercial principles by which fandom has operated are one of the things that set it apart from the mainstream of global cultural economies. But the twenty-first century, for good and for ill, is not the twentieth, and it seems clear that fandom is already in the process of evolving into a different configuration vis-a-vis professionalization and the contents industry. The sooner we recognize that it’s happening, the sooner we can begin to think about and consciously decide how we want to do fandom, and be fans, in light of that fact.