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.
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As a writer, you’re always something of a vandal. You’re a tomb raider. You’re gonna go in there and take the things that already exist – drag ‘em out again, and dress them up differently. There is a sense in which you are a thief. It’s no wonder that writers are ruled by Mercury, god of thieves and liars, and Mercury of the double tongue. There is the sense in which you will always steal, and take for yourself, the things that you need. But then you also bring them back into the light. You dust them down, and then you put them out again for people to find in a different way. The whole thing about myths is that they need to stay fluid, they need to keep moving, and they need to be dynamic. And that’s why we can go on retelling them, so that, what is valuable is passed on from generation to generation, across time, through cultures.
As a side note, the behind-the-scenes work that goes into reccing, reblogging, running awards sites, administering prompt memes, tagging for meme archives, etc., is why I get so frustrated with definitions of “fan work” that focus primarily on writing fic and making vids and ignore or handwave all the other kinds of work that make my daily fannish experience what it is. Fandom runs on the engine of production, but a lot of what we produce is information, architecture, access, not just artifacts.
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.
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).
(besides Type-Moon) Two other dōjin games, Higurashi no naku koro ni (2002–6, When they cry) by the circle 07th Expansion and Tōhō Project (1996–present, Orient project) by the Shanghai Alice Gengakudan circle, later became commercial hits of a similar or even surpassing scale. However, this phenomenon is not some kind of “amateur revolution.” Type-Moon’s Nasu Kinoko and Takeuchi Takashi and 07th Expansion’s Ryūkishi07 had already made steps into the professional industry before becoming famous in the dōjinshi scene. Much like Shinkai Makoto—the fan-creator of the OVA Voices of a Distant Star (2002, Hoshi no koe)—these creators already had made a career in the professional industry and were adored by fans for their passion and talents, rather than for their amateur status.
When the Comic Market was first held, it was one among many well-known dōjinshi conventions such as Manga Communication or Nihon Manga Taikai (Japan Manga Convention), at which all kinds of groups producing manga-and anime-related fanworks could physically gather together in order to share, buy, and sell dōjinshi. Dōjinshi circles, anime fan societies and science fiction school clubs sat side-by-side exchanging dōjinshi and fanzines.
But no fan scene is immune to controversies and imbroglios, and the Japanese dōjinshi scene was no exception. In 1975, a woman who had made critical remarks about the Manga Taikai was excluded from that convention, and subsequently a firestorm of anger among fans produced a movement against the Manga Taikai led by the famous circle Meikyū (Labyrinth), which resulted in the conception of a new alternative convention. On December 21, 1975, the first Comic Market—”a fan event from fans for fans”—was held in Tokyo.
Comike’s underlying vision was of an open and unrestricted dōjinshi fair, offering a marketplace without limitations on content or access. At the time, manga and anime fandom was organized around formal circles (particularly the school clubs that charged membership fees and produced regular group publications), and conventions were gathering places for the groups—rather than that of individual fans. Crucially, and from the beginning, Comike attracted visitors who were not just circle or club members, and who did not necessarily themselves produce fanworks. This innovation created its now massive popularity in Japan and increasingly, with international fans as well. Comike was soon held three times a year, attracting ever-increasing numbers of groups and fans.
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.
(…) 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.
And because fanworks in their inception are based on the original, the ability to have more and more without erasing the original structures the entire enterprise. One popular fan story form is known as “Five Things That Never Happened.” A “Five Things” story is fanwork that sets forth five alternate realities, each usually incompatible with one another.
In other words, if we only cite from those blogs that understand themselves to be clearly in public space, we may ignore both the possibly less guarded (and thus more unmediated?) voices as well as those who do not have the comfort or privilege to push themselves into the public light of the attention economy. Balancing our research to respect those voices without exposing them unnecessarily is one of the central challenges of online researchers.
Linking, after all, is part of the alternative economy of the blogosphere: if the goal of the blogger is to address as wide an audience as possible, any new readers driven to the blog is positive. That is not the case with all public journals or diaries, however. Especially on journaling sites like Livejournal.com, which emphasizes the interpersonal over the public journalistic, writers may indeed write for a clearly intended (often quite small) audience. When such journals get linked by one with much larger audiences, the exposure is often unexpected and undesired.
What is important to realize is that most bloggers post with a clear audience in mind, a fact even more pertinent to those users who purposefully prohibit search engines and do not look for as large an audience as possible. In such cases, their intended audience may be quite small and know the blogger as well as his or her beliefs, biases, and opinions on various subjects. Moreover, often their entries are not to be considered in a vacuum but are part of an ongoing conversation that spans over various posts and comments (and often even a variety of blogs). Observing such a conversation from the outside may easily take things out of context, because the context is only known to the intended audience (or sections thereof).
Fandom is always more complicated than the stories we tell about it, and scholars need to be careful not to create an imaginary feminist idyll. Simply inverting the gaze may keep subject/object relations unquestioned—a concern that has become especially important as queer and trans studies have complicated any naive feminist binaries that may have held sway during early years of media fandom. Likewise, as (authors writing in this issue) De Kosnik and Russo illustrate, an unequivocal embrace of noncommodified fan work remains problematic within a world that requires paying the bills.
My concern, as fans and acafans continue to vigorously debate the importance or continued viability of fandom’s gift economy and focus on flagrant instances of the industry’s attempt to co-opt fandom, is that the subtler attempts to replicate fannish gift economies aren’t being met with an equivalent volume of discussion or scrutiny.
Positioned precariously between official/commercial transmedia storytelling systems (Jenkins 2006:93–130) and the unofficial/gifted exchange of texts within fandom, ancillary content models downplay their commercial infrastructure by adopting the guise of a gift economy, vocally claiming that their goal is simply to give fans more—more “free” content, more access to the show’s creative team. The rhetoric of gifting that accompanies ancillary content models, and the accompanying drive to create a community founded on this “gifted” content, is arguably more concerned with creating alternative revenue streams for the failing commercial model of television than it is with fostering a fan community or encouraging fan practices. Grappling with the growing problem of time-shifting, ancillary content models create a “digital enclosure” (Andrejevic 2007:2–3) within which they can carefully cultivate and monitor an alternative, “official” fan community whose participatory value is measured by its consumption of advertisement-laced ancillary content.
By regifting a version of participatory fan culture to a general audience unfamiliar with fandom’s gift economy, these planned communities attempt to repackage fan culture, masking something old as something new.