“In a criminal case, if you are charged with an assault, the state incurs the cost of your defense, should you be unable to provide one for yourself. In a civil case, no matter which side you are on, you always incur the legal costs yourself. Large media companies, the ones actually engaging in legal action (NOT the creators), often have to do little more than threaten a lawsuit (or send a cease and desist letter) to elicit the desired behavior, even if they think they can’t win in court, because they know the defendant lacks the financial resources to defend him/herself and will thus back off, even if legally they are not obliged to do so. Scanlators generally cannot defend themselves and often lack the necessary legal knowledge (or access to a professional) so as to ascertain which legal threats have teeth and which do not. There may be ways of doing scanlation without express permission that do not violate copyright; it’s likely we will never know what they are, since the publishers hold (nearly) all the cards.”
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In a criminal case, if you are charged with an assault, the state incurs the cost of your defense, should you be unable to provide one for yourself. In a civil case, no matter which side you are on, you always incur the legal costs yourself. Large media companies, the ones actually engaging in legal action (NOT the creators), often have to do little more than threaten a lawsuit (or send a cease and desist letter) to elicit the desired behavior, even if they think they can’t win in court, because they know the defendant lacks the financial resources to defend him/herself and will thus back off, even if legally they are not obliged to do so. Scanlators generally cannot defend themselves and often lack the necessary legal knowledge (or access to a professional) so as to ascertain which legal threats have teeth and which do not. There may be ways of doing scanlation without express permission that do not violate copyright; it’s likely we will never know what they are, since the publishers hold (nearly) all the cards.
Ba Zi, 9a. Copyright, Scanlation, and the Ethics of Unfettered Reading ift.tt/2aD6b7G
For fans of manga, anime, and other Japanese media, pointing and laughing at inaccurate mass media portrayals of Japanese pop culture has been something of a sport for decades. A few weeks ago, however, things took a slightly more serious turn.
The ball got rolling when early in June, the Japanese House of Representatives approved a long-overdue law banning the possession of child pornography. Up to now, creating and distributing child pornography was as forbidden in Japan as anywhere else, but “simple possession” had not yet been criminalized. The new law applies only to “real” child pornography and leaves alone completely fictional depictions of underage characters in sexual situations in manga, anime and other media. This exception came about after vocal protests from manga publishers, creators, fans and free speech rights activists. The story was widely reported in non-Japanese media. However, most of these reports focused on handwringing about Japan’s “failure” to clamp down on sexually explicit manga. Most shared was a CNN article filled with outrage about how the new law supposedly permits Japanese bookstores to fill their shelves with shocking cartoon porn about children. (more…)
When writer Lori Jareo self-published her novel Another Hope and listed it on Amazon.com (Amazon), she expected only her family and friends to see the page and consider purchasing a copy. However, the novel also attracted a great deal of unwanted attention: from mocking bloggers, outraged fans, and Lucasfilms’ lawyers. Another Hope was not a wholly original work, but rather an unauthorized Star Wars “fan fiction” novel: a story using characters and settings from Star Wars without the consent of Lucasfilms, which owns the copyright to the Star Wars universe.
Lucasfilms’ lawyers sent a cease-and-desist notice to Jareo, who then removed the book’s listing from Amazon. While that was the only legal consequence of Jareo’s obvious copyright infringement, the punishment that she received from the public was much more severe. When several well-known science fiction writers and bloggers latched onto the story, they all had strong negative opinions of Jareo’s actions. In April 2006, the story hit dozens of popular blogs, inspiring such mockingly clever titles as “The Stupid is Strong with this One,” and “I Bet She Finds Our Lack of Faith Disturbing.”
Were it not for the Internet publicity concerning the Amazon listing, Lucasfilms may not have ever noticed it. In fact, the book was published nearly a year before the scandal erupted. It was not intellectual property lawyers or the copyright holder that condemned Jareo; rather, it was her fellow fan fiction writers. Jareo broke a major rule when she tried to profit from her fan fiction, and other fans were there to point out her mistake—not only for the faux pas in the fan community but also for the potential attention she brought to the world of fan fiction, a world in which copyright law is largely untested.
PaidContent reports that in June this year, Amazon will be launching Kindle Worlds, a legal publishing platform for fanfic. According to Amazon’s announcement, Kindle Worlds will start out by allowing fanfic based on Gossip Girl, Pretty Little Liars, and The Vampire Diaries.
It’s not necessarily bad news that companies are trying to create options for “licensed” fanfic, and I’ll leave the in-depth analysis of the legal aspects of this to professionals. Legal issues aside, though, I certainly hope that Kindle Worlds won’t become a model for other attempts to legalize fanfic. This concept seems to repeat a lot of fan-unfriendly aspects of previous forays by companies into the weird world of fic monetization. Kindle Worlds would allow fic authors to sell works “without hassle”, as PaidContent says, but apparently also without many rights, and within the boundaries of extremely strict content guidelines.
The platform refers to fandoms as “Worlds”. Copyright holders can give Amazon Publishing a license to allow fic writers to upload stories about licensed media to Amazon Publishing, which will then offer the stories for sale. Since this is not a self-publishing platform, Amazon Publishing will be setting the prices:
The fan fiction authors get a royalty of 35 percent for works of at least 10,000 words, and a royalty of 20 percent on works between 5,000 and 10,000 words.
Amazon Publishing will set the price for Kindle Worlds stories. Most will be priced from $0.99 through $3.99.
Fic authors will get a monthly payout. Amazon will be paying an undisclosed amount of royalties to the copyright holders of the media the fics are based on, and presumably also keep an undisclosed amount of money for itself. In short, while fic writers will get some money, they have zero control over how much they might want to charge or how much of a cut they deserve, and no options to negotiate. Amazon can organize its business the way it pleases, of course. But this “you will take what we offer you or nothing” approach may offer a big clue to how Amazon believes the rights of all parties should be balanced out when fic writers and copyright holders try to share income from fanworks.
An ever-returning problem with “official” fanfic contests and corporate websites is that they tend do have content guidelines that are rather more restrictive than what many fans feel is sensible, and Kindle Worlds is no exception. The copyright holders who license their properties to Amazon to allow fanfic on Kindle Worlds will be deciding which content is allowed:
World Licensors have provided Content Guidelines for each World, and your work must follow these Content Guidelines. We strongly encourage you to read the Content Guidelines before you commit the time and effort to write.
It’s not immediately clear if this means that there will be different content guidelines for every fandom on top of the content guidelines that Amazon itself sets. But Amazon’s basic content guidelines are as follows:
Pornography: We don’t accept pornography or offensive depictions of graphic sexual acts.
Offensive Content: We don’t accept offensive content, including but not limited to racial slurs, excessively graphic or violent material, or excessive use of foul language.
Illegal and Infringing Content: We take violations of laws and proprietary rights very seriously. It is the authors’ responsibility to ensure that their content doesn’t violate laws or copyright, trademark, privacy, publicity, or other rights.
Poor Customer Experience: We don’t accept books that provide a poor customer experience. Examples include poorly formatted books and books with misleading titles, cover art, or product descriptions. We reserve the right to determine whether content provides a poor customer experience.
Excessive Use of Brands: We don’t accept the excessive use of brand names or the inclusion of brand names for paid advertising or promotion.
Crossover: No crossovers from other Worlds are permitted, meaning your work may not include elements of any copyright-protected book, movie, or other property outside of the elements of this World.
This is rather incredibly restrictive, but I can’t say I’m surprised. In other fanfic contests and corporate fic-hosting endeavors, media companies have also set content guidelines that prohibit sexual content or other hard-to-market things. (Also check out this thesis by Suzanne Scott and this article by Roberta Pearson for more discussion on this.) Last year’s MTV-organized Teen Wolf fanfic contest caused some amazement precisely because it wasn’t explicitly hostile to slash or porn.
Needless to say, these guidelines will be excluding a massive number of authors from legally monetizing their fic – from those who write smut to those who like to write some violence, have their characters curse, or just don’t manage to provide a good “customer experience”. I’m curious what Amazon will make of non-sexually explicit slash.
Some may also consider it an issue that there will apparently be DRM on the stories to prevent them from being read on non-Kindle devices and programs:
Stories will be available in digital format exclusively on Amazon.com, Kindle devices, iOS, Android, and PC/Mac via our Kindle Free Reading apps. We hope to offer additional formats in the future.
And then we come to where the copyright on the submitted stories will go:
Amazon Publishing will acquire all rights to your new stories, including global publication rights, for the term of copyright. (…) You will own the copyright to the original, copyrightable elements (such as characters, scenes, and events) that you create and include in your work, and the World Licensor will retain the copyright to all the original elements of the World. When you submit your story in a World, you are granting Amazon Publishing an exclusive license to the story and all the original elements you include in that story. This means that your story and all the new elements must stay within the applicable World. We will allow Kindle Worlds authors to build on each other’s ideas and elements. We will also give the World Licensor a license to use your new elements and incorporate them into other works without further compensation to you.
Exactly what this implies is best explained by a legal professional, and I have no doubt that the OTW’s lawyers will have some advice ready soon, as they did with earlier corporate attempts to solicit fanworks. However, it certainly sounds like Amazon acquires all publication rights and will give the copyright owner a license to use a fan’s contributions without any compensation in any further commercial media they publish. (Whether Amazon gets any additional income from this licensing to the copyright holders isn’t mentioned either.) I’m curious about whether, for instance, this licensing agreement with Amazon would permit a fic writer to still offer her story for free on another fic archive.
Regardless – since claiming all rights to fanworks is another thing that many “official” fanwork-soliciting endeavors from Syfy with Battlestar Galactica to the fic contests planned by the infamous Fanlib have been lambasted for, I’m not sure if this will go down well anywhere.
All this doesn’t sound like the Kindle Worlds was designed to take fans’ rights and concerns into account. The list that Amazon gives of advantages that Kindle Worlds offers to fic writers is tellingly meaningless:
Writers benefit from Kindle Worlds because:
- Amazon Publishing has already secured the necessary licenses to write about any Kindle World
- They can earn royalties writing about established characters and universes
- The Kindle Worlds self-service submission platform is easy to use
The first point seems to imply that fic writers need a license to be allowed to write fic at all, which is a contested idea at the very least; many legal scholars writing about fanworks would probably argue differently. The second point, earning money with fic, may be considered a good thing by some fic authors; I’ve argued in favor of fic writers considering commodification options, as have others, so I’d personally say that this can indeed be a legitimate advantage – although as mentioned earlier, the fact that fan writers would have no control whatsoever over pricing makes this a qualified “okay then” indeed. The third point, that Kindle Worlds is easy to use, is just silly. Plenty of websites where people can publish fic are easy to use. I get the feeling that they just needed a third point in there to match the three-point list of advantages for copyright holders, and couldn’t think of anything.
Again, I’m not against the idea of “licensed” fic in and of itself, and those who want to agree to Amazon’s terms certainly have the right to do so. However, something like Kindle Worlds can be only one option among many for licensing fic, and it definitely shouldn’t be a model for other “solutions” to the legal uncertainties surrounding fanworks. The only option for publishing fic legally can’t be a platform that takes or licenses away many rights, doesn’t give fic authors the option to set prices, and excludes large numbers of fans with its content guidelines. Hopefully, alternatives that strike a better balance between the rights of fans and copyright holders will emerge soon to counter this.
Fan Art Law at Comic-Con (by deviantart)
From a review of the video by Boing Boing:
Here’s an hour-long presentation on copyright law and fan art from San Diego ComicCon 2012, presented by a lawyer from DeviantArt who once worked as a copyright enforcer for Paramount. It’s a pretty good overview, though — predictably enough — the presenter waits until quite late to talk about fair use and other public rights in copyright, generally downplaying them and omitting the de minimis exemption to copyright (the idea that it’s not infringement if you take a small enough piece, for reasons that are separate from fair use) altogether.
During the Q&A, he also mischaracterizes SOPA and PIPA as having been concerned with “mass-scale” infringement (the laws allowed for censorship if there was a single link to a website that infringed), but makes up for it somewhat by plugging EFF, Public Knowledge and other public interest groups.
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
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
Reading Reflection on Chinese boys’ love fans: An insider’s view by Erika Junhui Yi in the latest issue of TWC, I was struck not just by how extreme reactions to BL can get, but also how little info sometimes gets through to English-speaking media fandom about fandoms in different places that use different languages.
Yi describes how BL fans are sometimes stigmatized in China because BL often involves explicit sexual content, and homosexual content at that. For instance, she says that “in the massive censorship crackdown launched in 2010, thousands of BL fan forums, Web sites, and personal blogs were censored, along with pornography”.
Censorship is bad enough. But then there’s this:
These media reports, along with the Internet censorship, made BL fandom a target of attack. Perhaps the most outrageous action taken against BL fan girls happened in 2011. The police in Zhengzhou Province arrested 32 slash fiction writers whose work had appeared on a Web site specializing in homoerotic content. The arrested writers were all women, and most were in their 20s (Xin Kuai Bao, March 22, 2011, www.ycwb.com/epaper/xkb/html/2011-03/22/content_1068001.htm). This news caught the attention of other BL fan girls, most of whom had also created some kind of fan work, making them vulnerable to legal action.
If this was talked about in English fannish circles, I completely missed it. Was it discussed? Google is being no help at all. The only thing in English I found that mentions this episode is an academic article on BL in China, Forbidden love: incest, generational conflict, and the erotics of power in Chinese BL fiction (paywalled, alas. Comment if you’re looking for access, someone may be able to help). A bunch of Japanese friends I mentioned it to did know about the incident, though. Turns out it was even slashdotted in Japan.
It’s things like this that make me think we need better ways to make sure that at least the very important info about troubles and incidents in non-English-speaking fan communities gets over the language barriers. I’m not sure if English-speaking fans could have been of any help in this particular incident, but 32 fic writers getting arrested seems like something that should have made more waves than it did.
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.
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 . There’s also existing licenses, like whatever Kadokawa Publishing is doing exactly, or Jim Butcher’s fic license, which is apparently kind of dubious . 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!  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  www.jim-butcher.com/posts/2010/new-fanfiction-policy  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
In their last email to me, Games Workshop stated that they believe that their recent entrée into the e-book market gives them the common law trademark for the term “space marine” in all formats. If they choose to proceed on that belief, science fiction will lose a term that’s been a part of its canon since its inception. Space marines were around long before Games Workshop. But if GW has their way, in the future, no one will be able to use the term “space marine” without it referring to the space marines of the Warhammer 40K universe.
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)
This is the first in a series of posts on fandom-related thoughts springing from three conferences I’ve attended in the past month, AdaCamp, WIkimania, and Console-ing Passions. All three consolidated into one great fandom and open source idea extravaganza for me. These after-conference posts come royally late, but I think the time elapsed has helped me clarify my thoughts a bit. I’ll be talking mostly about AdaCamp, although I’ll reference Wikimania and Console-ing Passions a couple of times when relevant. A few quick basics. As Staci Tucker summarized at Fembot,
“AdaCamp is an Ada Initiative unconference focused on increasing women’s participation in open technology and culture. The invitation-only event gathered professionals, fans, hobbyists, academics, and activists to build community, discuss issues impacting women across open technology, and strategize ways to inspire positive change and build community resources.”
The Fembot post neatly lays out the basics of AdaCamp, who was there, what was discussed, what was eaten, and so on, so I’ll just refer to that one for all those things and dive straight into some personal reflections on fans and fanworks in open movements. (AdaCamp has a policy of not referring to conference attendees by name without permission, so there will be a lot of “someone said”.) What I took away from all three conferences is that more and more people see strong links between fan communities and communities built around open source and other “open” things. Especially at AdaCamp and Console-ing Passions, I had the pleasure of talking about fandom and open source with many great people engaged in either or both of those communities. I agree with them that it would be very beneficial for both fandom and “open” movements to recognize that they’re both creative communities that have very similar principles, goals, and issues, and that they can help each other solve said issues instead of laboriously re-inventing the wheel. Issues include but are not limited to the lack of women in open source, and the precarious legal position of fanworks. I think it’s important that we start talking about this a bit more loudly. First of all – what is “open” stuff, anyway? There’s plenty of nebulous definitions around, and since adding to them isn’t the purpose of this post, I’ll just mention my personal definition and leave it at that. This is a tad confusing since we talk about open “things” a lot, but “openness” is basically a characteristic of a process. It’s the way things are made or accomplished that makes them open or not. The key aspect of all open processes for me is that they empower people to do things for themselves, because the inner workings of said things are visible, and because people have the tools to change said things and share the results with others. Open processes tend to crystallize into movements of people who see a similar philosophy behind all those open processes, but most people who create things using open processes are either unaware of or uninterested in the philosophical side; they just use open processes because they work. It’s certainly not unheard of to see people who identify as members of fandom or some “open” movement to frame fannish activities like fanwork creation as something that fits in with more famous “open stuff” like open source software. Skud does it here, and the Ada Initiative did so by explicitly inviting fans to AdaCamp. I’ve discussed the concept with many fans and academic colleagues, and it even pops up in a couple of academic works. Still, the idea that it may be correct and useful to frame fanworks as a sort of “open source cultural good” definitely isn’t broadly accepted yet. Lists of open stuff tend to include all sorts of creative works and activities, from software to ways in which people organize themselves to do something collectively. However, most lists of open stuff that I’ve seen – like this one – don’t include any sort of “open” cultural work. The Wikipedia article that lists “open” things that function according to a philosophy similar to the one behind open source has a subsection for “arts and recreation”, but it only has a brief mention of copyright getting in the way and no examples of “open” cultural works. That’s a pretty conspicuous blank in those long lists. It suggests that most human activity has an “open” equivalent these days, except for cultural works. That’s not very desirable: if there’s one thing that’s important enough that it should have a parallel movement of people creating the open equivalent of it, it’s cultural creation. And when you think about it, it’s also not very likely that we would somehow manage to invent an open equivalent for every possible activity except cultural creation. There’s just no way we can fail to invent an “open source” way of making cultural works. I’m firmly on board with the idea that we invented that particular process of cultural creation ages ago, and fanworks are one of its most representative results. Before we start picking apart the relationship between fannish stuff and open source in later posts, let’s go back the beginning and consider why fanworks can be considered part of the same “open” movement that also encompasses more well-known “open stuff” like open source software, open access in academia, and large-scale peer production like on Wikipedia. As mentioned earlier, open processes empower people to do things by exposing how those things work and giving individuals the tools to make changes and feed them back into their communities (whereas in the non-open alternative process, individuals are not allowed or able to make changes). Some examples of open processes are very clear-cut. Open source software is the most famous and uncontested example of open stuff for a reason: it’s pretty eye-catching and easy to understand. Nobody needs to be convinced that it’s empowering to be able to change the technology around you. It obviously works, and it obviously results in useful technological tools, and it’s all (mostly) nice and legal. But I’d argue that fanwork is a great example of open stuff, too. It’s just as empowering to be able to change the culture you live with, to be aware that changing that culture is possible, and to have the tools to do it. People in fan communities know that legitimate culture-making isn’t just about making a perfectly “original” thing and laboriously building an audience for it. It’s also about building on what others have made, about analyzing what’s going on in the media everyone’s watching and making it better, and about feeding those improvements back into the community of people who are also watching that “original” product so they can build on your improvements in turn. And just to get the porn thing out of the way at once: “making it better” includes everything from writing critical meta about social issues in a show to creating the sex and relationships-focused content that the source book or film doesn’t provide. For very many people, adding more shipping and more porn about their favorite characters is really, truly one the big thing that makes their favorite media better – more fun, more meaningful, and easier to share and enjoy with others. In the next post, I’ll consider what fan communities might have to offer to open source communities and vice versa.
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.
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.
Guest post by Helen W.
I follow how fan fiction is perceived by nonfannnish society through a weekly survey of references to fan fiction in mainstream media (somewhat broadly and arbitrarily defined). The past few weeks, I’ve been seeing a number of references to fan fiction in the context of the discussion of a recent English translation of Russian scientist Kirill Yeskov’s The Last Ring-bearer (Последний кольценосец), a 140,000 word novel “set during and after the end of the War of the Ring (the climactic battle at the end of [J.R.R. Tolkien's] The Lord of the Rings) and told from the point of view of the losers“, according to Salon’s Laura Miller.
Though sold commercially in Russia, and in translation in several European languages, fear of the Tolkien estate has kept an English translation from being professionally published.
Several months ago, Yisroel Markov, who claims he spent “several lunch hours” on the project, produced a full translation of The Last Ring-bearer and, with the blessing of Yeskov, put a link to a download on his LiveJournal. And then the fun began.
I first became aware of The Last Ring-bearer via articles on Guardian.co.uk and Lovereading UK. Though the headlines of both articles imply the Tolkien estate is actively working against the dissemination of The Last Ring-bearer (“Free fan-fiction reworking of The Lord of the Rings infringes copyright”; and “Lord of the Rings reworking a hit with fans, but not Tolkien estate”), the estate’s response has actually been pretty muted. Quoting from the Guardian piece, David Brawn at HarperCollins, Tolkien’s exclusive publisher, said: “To my knowledge, none of us have ever been approached to publish this book.” Russia has operated outside copyright “for years”, Brawn added, though the situation is now changing. “Online there are lots of infringements which it is extremely difficult to do anything about,” he said. “When you get something as popular as Tolkien, fans want to create new stories. Most are pretty amateurish. Tolkien himself isn’t around so it’s the estate’s view that it’s best to say no to everything. If you let one in, you’d open the floodgates.”
( Compare this to recent press reports of the estate’s response to Steve Hilliard’s Mirkwood: A Novel about J.R.R. Tolkien. )
Mainstream attention to The Last Ring-bearer might have ended there if it hadn’t been for Salon’s Laura Miller, who published a lengthy piece on the novel on Feb. 15. Of particular interest to me was Miller’s closing: “Yeskov’s “parody” — for “The Last Ringbearer,” with its often sardonic twists on familiar Tolkien characters and events, comes a lot closer to being a parody than “Wind Done Gone” ever did — is just such a reminder. If it is fan fiction (and I’m not sure I’m in a position to pronounce on that), then it may be the most persuasive example yet of the artistic potential of the form.”
Miller’s piece caught the attention of, among others, The Atlantic’s Mark Bernstein, who wrote on his blog, “It’s a probe of the former Soviet Union and an examination of memory and of history, and if the rest of the book lives up to its opening chapters, much [of Miller's views on other subjects] may be forgiven.” A mention of Miller’s piece on Slashdot has garnered 581 comments. Showing an amazing lack of knowledge of fan fiction, a piece on Mumbai Mirror began, “Every story has two versions. However, for the longest time J R R Tolkien’s epic three-part novel Lord of the Rings was the only version of life on Middle Earth and the dark lord Sauron its main villain. However, a new book titled The Last Ringbearer looks at the War of the Ring (the climactic battle at the end of LOTR) from the perspective of the people of Mordor.”
And on The Moviefone Blog, Eric Larnick wrote, “How would you react if we told you a secret installment of ‘Lord of the Rings’ in some other-worldly language existed, circulating among a few intrepid literary archivists, building in rumor to the point of myth? Now what if we told you that that new ‘Lord of the Rings’ story has finally arrived Stateside — and that you can read it for free right now. Curious? […] [W]hen you’re done reading it, we can all begin speculating when the big-screen adaptation will finally happen (most likely the year 2350 when copyright law is abolished in the Great Disney Wars.)”
I’m still trying to figure out what this means, if anything, for fan fiction. Does a generally positive reaction to The Last Ring-bearer bleed over into respect for the thousands of fics published every day with no notice outside of fandom? I fear the opposite – that The Last Ring-bearer, alongside professionally-published works of highly derivative fiction (e.g. Wide Sargasso Sea, Rosencrantz and Guildenstern are Dead) provides opportunities for the offhand insult of fan fiction in general. (Incidentally, Salon has also published a translation by Markov of an excellent essay by Yeskov, written for a fanzine in 2000, about why he wrote The Last Ring-bearer.)
I also can’t help but wonder how the coverage of The Last Ring-bearer would be different if Yeskov was a woman, or had written the novel anonymously so that Yeskov’s career in science wouldn’t be a legitimizing factor. Or whether there’d be any mainstream notice at all (tens of thousands of Lord of the Rings stories on the internet suggest not).