This has been my week for dealing with law professors — having engaged in a conversation with Yale Law Professor Yochai Benkler last week at the MIT Communications Forum, I was pleased to find a review of Convergence Culture over at the blog of the University of Chicago Law School written by Randy Picker. The first and second parts of the review mostly provide a detailed, accurate, and positive summary of the key points from the book, targeting those passages which may be particularly relevant to people interested in the legal implications of participatory culture. The last segment, not surprisingly, gets into the book’s discussion of fandom and intellectual property law. I thought I would use my post today to respond to a few of Picker’s key points there.
Now let’s be clear that I am no expert on the law. My wife happens to have a law degree from the University of Wisconsin and we both take some interest in developments in the area of intellectual property law and regulation of free speech. I suspect I know more than most laymen about these matters as they impact fan culture and the other sites of grassroots participation I have written about. But I would be a fool to try to debate the fine points of the law with a scholar of Picker’s stature.
Fan FIction and Fair Use
Jenkins pushes (p.190) for a reformulation of fair use “to legitimate grassroots, not-for-profit circulation of critical essays, and stories that comment on the content of mass media.” But he clearly wants more, as he recognizes that most fans aren’t that interested in producing work that the law is most likely to protect (parody or critical commentary of the sort seen in The Wind Done Gone), but who want instead to write about Ron and Hermione kissing.
Let me spell out a little more precisely what I argue on page 190 in the book:
Nobody is sure whether fan fiction falls under current fair-use protections. Current copyright law simply doesn’t have a category for dealing with amateur creative expression. Where there has been a public interest factored into the legal definition of fair use — such as the desire to protect the rights of libraries to circulate books or journalists to quote or academics to cite other researchers — it has been advanced in terms of legitimated classes of users and not a generalized public right to cultural participation. Our current notion of fair use is an artifact of an era when few people had access to the market place of ideas and those who did fell into certain professional classes. It sure demands close reconsideration as we develop technologies that broaden who may produce and circulate cultural materials. Judges know what to do with people who have professional interests in the production and distribution of culture; they don’t know what to do with amateurs or people they deem to be amateurs.
For me, the phrase, the public right to cultural participation is a key concept underlying the book’s discussion. If I had my way, the right to participate would become as important a legal doctrine for the 21st century as the right to privacy as been in the late 20th century. I argue elsewhere in the book that a right to participate might be abstracted from the combined rights listed in the First Amendment and the right to participate would include the right to respond meaningfully to core materials of your culture. In that sense, I might go beyond our current understanding of fair use.
But a key point here is that I regard all or at least most fan fiction to involve some form of criticism of the original texts upon which it is based — criticism as in interpretation and commentary if not necessary criticism as in negative statements made about them. Not being a legal scholar, I have had trouble producing a more precise definition of what constitutes critical commentary for the purposes of Fair Use. I’d be curious if any reader could provide a workable one for the purposes of this discussion.
For the moment, I am relying on my understanding as someone who is in the criticism business. I reviewed a number of guides for critical essays written at writing centers at major universities. What they seem to have in common is the following: a critical essay puts forth an interpretation of the work in question, one which includes debatable propositions which are in turn supported by the mobilization of some kind of evidence — either internal (from the work itself) or external (from secondary texts which circulate around the work). All of them make clear that critical commentary may, in fact, embrace the ideas included in the original work as well as take issue with them.
Hand Holding, Snogging, and Critical Commentary
My discussion of critical commentary in the book continues:
One paradoxical result [of current copyright law] is that works that are hostile to the original creators and thus can be read more explicitly as making critiques of the source material may have greater freedom from copyright enforcement than works that embrace the ideas behind the original work and simply seek to extend them in new directions. A story where Harry and the other students rise up to overthrow Dumbledore because of his paternalistic policies is apt to be recognized by a judge as political speech and parody, whereas a work that imagines Ron and Hermione going on a date may be so close to the original that its status as criticism is less clear and is apt to be read as an infringement.
So, yes, I am concerned about stories where the characters hold hands or snog and not simply those where same sex couples end up in bed together or when the story is told from the perspective of He Who Must Not Be Named. This goes to the very nature of fan culture: fans write stories because they want to share insights they have into the characters, their relationships, and their worlds; they write stories because they want to entertain alternative interpretations or examine new possibilities which would otherwise not get expressed through the canonical material. These interpretations are debatable — indeed, fans spend a great deal of time debating the alternative interpretations of the characters which appear in their stories.
Fan stories are in no simple sense just “extensions” or “continuations” or “extra episodes” of the original series. Unlike the model critical essays discussed by the various university writing centers, the insights about the work get expressed not through nonfictional argumentation but rather through the construction of new stories. Just as a literary essay uses text to respond to text, fan fiction uses fiction to respond to fiction. That said, it is not hard to find all kinds of argumentation about interpretation woven through most fan produced stories. A good fan story references key events or bits of dialogue to support its particular interpretation of the character’s motives and actions. There are certainly bad stories that don’t dig particular deeply into the characters or which fall back on fairly banal interpretations, but the last time I looked, fair use gets defined in functional terms (what is the writer trying to do) and not aesthetic terms (what they produce is good or bad artistically). Fan fiction extrapolates more broadly beyond what is explicitly stated in the text than do most conventional critical essays and may include the active appropriation and transformation of the characters as presented but even here, I would argue that the point of situating the characters in a different historical context, say, or in another genre is to show what makes these characters tick and how they might well remain the same (or be radically different) if they operated in another time and place. Fan fiction is speculative but that does not mean that it is not at its core interpretative.
Elsewhere, I have argued that fan fiction emerges from a balance between fascination and frustration. If the original work did not fascinate fans, they would not continue to engage with it. If it did not frustrate them in some level, they would feel no need to write new stories — even if the frustration comes from an inadequate amount of material. In most cases, the frustration takes the form of something they would change in the original — a secondary character who needs more development, a plot element that is underexplored, an ideological contradiction that needs to be debated. And in that sense, fan fiction is often critical of the original in the looser sense that it expresses some concern about the story it tell.
As Picker notes, I do acknowledge the rights of creative industries to protect themselves against commercial competitors even as I would argue for a broader definition of fair use for amateur media makers who circulate their works for free. As I note in the book,
Under the current system, because other companies know how far they can push and are reluctant to sue each other, they often have greater latitude to appropriate and transform media content than amateurs, who do not know their rights and have little legal means to defend them even if they did.
In so far as they impact fan fiction, the studio’s intellectual property “rights” are the product of intimidation and chilling effects and not based in any real legal doctrine; so far there is no case law which speaks directly to the fair use or parody status of fan fiction. Unfortunately, so far, the various public interest law organizations, including the Electronic Frontier Foundation, have been more willing to protect the rights of Napster to facilitate illegal downloads than the rights of fans to publish stories which comment critically on the characters of Harry Potter. And a teenager confronted with a threat from a major studio that could bankrupt their family tends to fold rather than seek legal counsel.
My distinction between commercial competitors and amateur cultural production leads Picker to make the following observations:
Jenkins asserts that IP holders attempt to use IP rights to control authoritativeness. I think that is probably right, but authoritativeness is much more organically tied to the author herself. So I don’t think that Jenkins provides any examples of fans hijacking the canon from the author. This is almost a question of market share. In a world without fan fiction, Rowling had a 100% share in the Harry Potter creation market. With fan fiction, her share is smaller, but I suspect that it is still in the high 90s. This isn’t about sheer number of words written–fans could quickly surpass an original author–but more about reading share and mindshare. Every fan will read HP VII, but what fraction of those has read whatever is the leading non-official Potter text?
Actually, I wouldn’t read this simply in terms of market share. It is almost certainly true that the commercial text will outdraw any texts fans are going to be able to produce. Moreover, anyone reading the fan text is in almost every case going to end up reading the commercial inspiration for that work — after the fact if not before. The fan work depends on a reader with at least some superficial familiarity with the original and one could argue that fan texts may extend the shelf life of the original by generating new generations of readers.
Canon and Fanon
But again, it doesn’t stop there: I would suggest that most fans take the “canon,” that is, the official texts (in almost every instance) provide the base line for the conversation. The author makes a statement about the characters; the fan writer proposes alternative interpretations of the characters. That’s why fans draw a distinction between canon (the original text) and fanon (the works produced by other fans which may or may not be constraining on subsequent interpretations).
There are instances where fans reject canon but it is most often in cases where subsequent developments in the series go against what fans took to be something foundational to their experience of the program. Fans reject canon when canonical authors contradict themselves or violate the spirit of their contract with the readers. I discuss one such instance in my earlier book, Textual Poachers, around the series, Beauty and the Beast, where plot developments tarnished aspects of the series which fans had been taught were sacred in earlier episodes and were rejected by a sizable section of fandom. The value which fans place on canon has to do with the moral economy that emerges around the series and only holds when the producer plays fair with her readers.
My concern is not just that the original texts exert a certain authority over fans. It is that the producers use that authority to police fan interpretations, normalizing some and marginalizing others. In the book, for example, I discuss the ways that Lucas’s official Star Wars film contest adopts seemingly neutral rules which a) only grant to fans those rights it would be most difficult for the company to restrict — the right to make parodies or documentaries and b) have the effect of making the works of male fans highly visible while pushing the work of female fans underground.
IP matters here in the sense that if commercial competitors could write Harry Potter stories, a non-Rowlings text might do well. A commercial house would engage a professional writer and could put its marketing muscle behind the story. That would look a lot like Lucasfilm with its sixty best sellers, except that we would have more competitors. But I don’t think that copyright is driving control over the canon against fans. The fan texts would have to achieve greater mindshare to become canonical.
It is possible to imagine a commercial competitor producing a text which generates a good share of the market — especially given, as Picker notes, the likelihood of aggressive marketing but also given the possibility that the competitor really did their homework and were more willing to provide fans with what they wanted. But the new text might still not be read as canon, would be judged against the original, and would likely be perceived as a rip-off which tarnished rather than enhanced the experience of the series. One should not under-estimate the degree of loyalty fans will feel towards original creators or their desire to see themselves as protecting the integrity of favored works. There would be very few works produced by commercial competitors which would carry the same cultural authority whatever their commercial fates may be.
When we don’t observe licensing to extend the story, it seems unlikely that fan fiction competes with the authoritative texts or with licensing opportunities in adjacent markets. So Rowling licenses for movies, but she isn’t building–yet–the Harry Potter Extended Universe. Lucasfilm has done exactly that, and, in that context, fan fiction may compete with officially licensed versions and represents a missed licensing opportunity
Hmm. My hunch is that in practice, fan fiction rarely decreases the amount of commercial content any given consumer consumes regardless of whether there is commercial content available. When fans get really interested in something, they want to suck in as much information and insight as possible. But I would be hard pressed to know how to prove this. He’s right that the more broadly extended the universe becomes, the lower the likelihood that any given fan will consume all of that material. Very few people have consumed every story associated with Star Wars or Star Trek. Yet, this would be true for people who did not read fan fiction as well and I’d wager that the people who read fan fiction are likely to consume more not less of the commercially produced material than fans of the series who do not read fan fiction, just because they have a deeper engagement of the material over all, and because the fan fiction is likely to send them back to the primary text in search of evidence with which they may adjudicate conflicting claims about the characters and their motivations.
As Jenkins describes it (p.150), Lucasfilm has been most aggressive in trying to block erotic stories involving the Star Wars characters. (I haven’t gone looking but my guess is that if we permute and combine Han/Leia/Luke/Chewie, we can come up with a full-range of variations.) This is like parody in the sense that we think that it is outside of what the author would be willing to agree to, but probably unlike parody as it may not operate as a commentary on the original text. As the parody case makes clear, copyright has been willing to protect as fair use the use that wouldn’t be licensed voluntarily.
Again, we come back to a core question I identified earlier: for me, all fan fiction constitutes a form of critical commentary on the original texts and indeed, erotic fiction seems most often interested in providing a critique of the constructions of gender and sexuality found in the original works. This is part of what distinguishes fan erotica from much of the pornography that circulates in our culture: it is not anonymous sex; it uses sex as a vehicle to investigate the psychology of the characters and as such, it may be the form of fan fiction which most clearly comments on the original text. Fan erotica does more than comment on the original text: it clearly has mixed motives but there is very little fan erotica that is not also involved in critical commentary in some form.
This is a fascinating legal discussion — though as I suggest in the book, I am more apt to put my faith in the short term in companies liberalizing their policies towards fan fiction because it is in their economic interests to do so. We are already seeing this shift happen with very little fanfare. The Powers That Be are recognizing that fans create value by generating greater interest in their works, expanding rather than diminishing the market. I often argue that fans can be seen to appreciate a favorite show in two senses: they like it and they add to its value through their various creative and emotional investments. They do invisible work which is increasingly valued by media producers and as a result, we are seeing studios start to turn a blind eye to fan fiction and in a few cases, actively promote it. This will result in a liberalization of fan fiction in the short run which may or may not help to settle the legal issues in the long term. Can they give us free access to walk across their land for a period of time and then reverse course and start prohibiting access or charging us rent? The law would seem to give us some contradictory messages on this point