Davies on The Fan-Judges: Clues To a Jurisculture of Sherlockian Fandom @georgemasonlaw

Ross E. Davies, George Mason School of Law, is publishing The Fan-Judges: Clues to a Jurisculture of Sherlockian Fandom in volume 23 of Transformative Works and Cultures (2017). Here is the abstract.

American judges sometimes encourage other participants in the legal system to behave like Sherlock Holmes. They are relying on a shared culture that both appreciates a literary figure and recognizes a human capacity to emulate an imaginary creature (here, Sherlock) outside the context in which it was created. Consciously or not, the judges are tapping into classic fandom, but do they think of it that way, and should they?

Download the article from SSRN at the link.

Rosenblatt on The Great Game and the Copyright Villain

Elizabeth Rosenblatt, Whittier Law School, is publishing The Great Game and the Copyright Villain in volume 23 of Transformative Works and Cultures (2017). Here is the abstract.

This essay explores the reactions of Sherlock Holmes fans and enthusiasts to assertions of intellectual property ownership and infringement by putative rights holders in two eras of Sherlockian history. In both the 1946–47 and 2013–15 eras, Sherlock Holmes devotees villainized the entities claiming ownership of intellectual property in Holmes, distancing those entities from Sir Arthur Conan Doyle and casting them as greedy and morally bankrupt. Throughout each era, Sherlockians did not shy away from creating transformative works based on the Holmes canon over the objections of putative rights holders. This complicates the usual expectation that copyright assertions against fans are likely to chill fan production. The essay explores possible reasons why Sherlockian fandom might differ from other fandoms in this respect, including the role of the Great Game form of Sherlockian fandom in shaping fan attitudes toward their subject.

Download the article from SSRN at the link.

Al-Alosi on Young People as Creators of Sexually Explicit Online Fan Fiction and the Australian Legal Regime

Hadell Al-Alosi, University of New South Wales, Faculty of Law, has published Young People as Creators of Sexually Explicit Online Material: Fan Fiction and the Law in Australia as UNSW Law Research Paper No. 2015-74. Here is the abstract.

Debate concerning the role of traditional media in the sexualization of young people tends to view young people as a special group of consumers who require protection from some media content and its potential risks. However, with the advent of new media technologies, young people are no longer passive consumers of sexualized representations, but also generators of sexually explicit material that is created and shared among their peers. This challenge has raised concern among those adults who remain ambivalent, or perhaps in denial, about the possibility that young people are sexually curious. Accordingly, this essay seeks to challenge the view that young people are simply passive recipients of sexual messages in the media by highlighting the role that young people play as producers of media content, in particular through the production of fan fiction. This essay investigates the potential criminalization of young people whose online communications about sex can be classified as criminal acts under Australia’s child abuse material legislation. Interviews were conducted with five members of the judiciary to ascertain how this kind of communication might be viewed in a court of law. This was conducted as part of larger research project that seeks to analyze how Australia’s child abuse material legislation may impact on the sexual self-expression of young people themselves.

Download the essay from SSRN at the link.

Fan Fiction, Fair Use, and Commercialization

W. Michael Schuster II, Oklahoma State University, has published Fair Use and Licensing of Derivative Fiction: A Discussion of Possible Latent Effects of the Commercialization of Fan Fiction at 55 South Texas Law Review 529 (2014). Here is the abstract.

Commercial distribution of fan fiction (e.g., Amazon’s Kindle Worlds) is viewed as a great step forward by some fan authors. These individuals point out that for-profit distribution allows authors of fan fiction to reap the profits associated with the hard work put into drafting their new stories. However, it is possible that commercialization may have unforeseen, negative consequences. This Article evaluates how commercial sales may hinder the production of noncommercial fan fiction by undermining the assertion that fan fiction is a “fair use” and, thus, does not represent an actionable copyright infringement. Specifically, this Article describes how commercial distribution creates a market to license the right to draft fan fiction, and how such a market may negatively impact the assertion that fan fiction is a fair use. 

Download the article from SSRN at the link.

"Textual Poachers" and Fair Use

Rebecca Tushnet, Georgetown University Law Center, is publishing  'I'm a Lawyer, Not an Ethnographer, Jim': Textual Poachers and Fair Use, in the Journal of Fandom Studies. Here is the abstract.

This short article, written for a festschrift for Henry Jenkins, discusses the influence of his work on media fandom in legal scholarship and advocacy around fair use.

Download the essay from SSRN at the link. 

Fan Fiction of the Eighteenth Century and IP

Elizabeth F. Judge, University of Ottawa Faculty of Law (Common Law Section) has published "Kidnapped and Counterfeit Characters: Eighteenth-Century Fan Fiction, Copyright Law and the Custody of Fictional Characters," at Originality and Intellectual Property in the French and English Enlightenment 22-68 (Reginald McGinnis ed.; Routledge, 2009). Here is the abstract.

Analyses of the intellectual history of eighteenth-century copyright typically focus on unauthorized printed editions (that is, the entire copying of another author’s works verbatim) and the associated copyright case law in the literary property debates, such as Millar v. Taylor and Donaldson v. Becket, which tested the status of authors’ common-law rights. This chapter turns to eighteenth-century fan fiction, to import today's term for referring to newly written fiction by fans featuring fictional characters created and made famous by another author, and especially online publication of fan fiction, in order to examine the early relationship of readers and authors to fictional characters, rather than to printed works, and the ongoing custodial interests that both readers and authors felt toward fictional characters in this period. While seemingly an anachronistic pairing to speak of “fan fiction,” which has been so strongly associated with the internet, and the eighteenth century, the characteristics that define internet fan fiction appositely describe the eighteenth-century phenomenon, excepting the medium of dissemination. As with fan fiction today, which has been at the locus of cultural and legal debates around the meanings of authorship, originality, interests, and rights, fan fiction in the eighteenth century was a focal point for unresolved and evolving views on those same issues, especially the nature of authorship, and originality, the integrity of fiction, and the reader’s role. This chapter examines the cultural discourse around fan fiction in the eighteenth century in order to shed light on eighteenth-century interpretations of originality and imitation, and the extent to which copyright law shaped (and was shaped by) cultural perceptions about the ownership and care of fictional characters and how competing interests in fictional characters contributed to the debate on copyright law. It re-considers the role that author’s rights, in the sense of moral rights and the droit d’auteur tradition played in English copyright history. Well-documented examples of extensive reader response to fictional characters that became cultural phenomena, including Samuel Richardson’s Pamela and Clarissa and Daniel Defoe’s Robinson Crusoe, spawning numerous unauthorized sequels in novels, plays, and short stories, lively correspondences between fans and the author, satires by rival established authors, and character merchandising, illustrate how appealing fictional characters who reach iconic status within a culture are subject to competing claims of ownership as well as competing affections. The chapter focuses especially on when and why popular, creative, and often even affectionate inclusions of these eighteenth-century fictional characters into works by other people were, more often than not, treated by the original authors as akin to legal wrongs against a person - ravishing, counterfeiting, and kidnapping - and treated analogously to the word-for-word copying of entire works that was condemned as “pirating,” despite the lack of legal foundation in eighteenth-century English copyright law to underlie these assertions.

Download the essay from SSRN at the link.

Gender, Copyright, and Filk Literature

Melissa L. Tatum, University of Arizona College of Law, Robert E. Spoo, University of Tulsa College of Law, and Benjamin Pope, University of Arizona, have published Does Gender Influence Attitudes toward Copyright in the Filk Community? as Arizona Legal Studies Discussion Paper No. 09-21. Here is the abstract.

Over the past few decades, the filk community has expanded from a small group of science fiction convention-goers who occupied unused convention rooms during the late night hours to a community large enough to organize several dedicated filk conventions each year, a Hall of Fame, and an annual awards ceremony. While many filk songs are original lyrics set to original music, many more filk songs consist of lyrics written to existing music and/or lyrics based on characters/worlds created by other people. These practices potentially create problems in light of existing intellectual property law. In this paper, we explore those issues and whether a filker's gender influences his or her attitude towards intellectual property law. After setting out a basic explanation of filk and the intellectual property issues, the article details the various statistical results generated from the databases we built (one objective and one subjective) and draws some conclusions about gender and filk.

Download the paper from SSRN here.

Fan Fiction and the RDR Books Decision

Megan L. Richardson, University of Melbourne Law School, and David Tan have published The Art of Retelling: Harry Potter and Copyright in a Fan-Literature Era as 14 Media & Arts Law Review 31 (2009). Here is the abstract.

Simple assertions that fans are harmless may be belied by the copyright cases threatened and launched by authors of popular fictional works, against fans who write secondary works based on distinctive elements of the original stories. On the other hand, it may be that authors are too possessive of their creations, seeking to control their imaginary afterlives. The story of Warner Bros v RDR Books - the Harry Potter Lexicon case - provides a vehicle to examine the conundrum. The decision of Patterson J in the US District Court seeks to navigate a fine line between original authorial control and literary activities of fans, in suggesting that, in the main, fan literature should be encouraged and protected as fair use for copyright law purposes. However, the judge faced an uphill battle in countering Rowling's insistence that she was entitled to exercise control over all products derived from her 'nominative genius'. In the decision's aftermath, Rowling has elected to support rather than challenge a new version of the Lexicon, which seeks to incorporate substantially more commentary than the original version. However, we wonder what breathing space will be left for fan fiction.

Download the article from SSRN here.

Conference Announcement

Sixth Annual IP/Gender: Mapping the Connections
Female Fan Culture and Intellectual Property

American University Washington College of Law’s Program on Information Justice and Intellectual Property, Women and the Law Program, and Journal of Gender, Social Policy & the Law in collaboration with American University's Center for Social Media and The Organization for Transformative Works. Featuring projects and multimedia works reflecting on gender, copyright, fair use, freedom of expression and fan culture.

Here's a link to more information.

Call For Papers

American University Washington College of Law

IP/Gender: Mapping the Connections

6th Annual Symposium

April 24, 2009

Special Theme: Female Fan Cultures and Intellectual Property

Sponsored by
American University Washington College of Law’s

Program on Information Justice and Intellectual Property

Women and the Law Program

Journal of Gender, Social Policy & the Law

In collaboration with

American University’s Center for Social Media

The Organization for Transformative Works

Rebecca Tushnet, Georgetown University

Francesca Coppa, Muhlenberg College

Deadline for submission of abstracts: December 19, 2008


The 6th Annual Symposium on “IP/Gender: Mapping the Connections” seeks papers on female subcultures and their relationship to intellectual property and copyright regimes, with a particular emphasis on fan works and culture. Appropriate topics include: fan arts, including fan fiction, arts, music, filk, crafts, and vids; and fan communities: including clubs, forums, lists, websites, wikis, discussion groups, rec sites, and other creative, celebratory, or analytical communities.

Introduction & Context

Historically, the study of subcultures has been biased toward male groups and activities: first, because male activities (e.g. punk rock, motorcycling, football hooliganism) tend to be public, and therefore visible; second, because many male groups have been seen as overtly resistant to mainstream norms. In contrast, many female subcultural activities took place in private, in the domestic realm or in other less visible spaces, and those that were visible tended, in the words of Sarah Thornton, to be "relegated to the realm of a passive and feminized 'mainstream' (a colloquial term against which scholars have all too often defined their subcultures)"; in other words, the things women did and do have often been framed as mainstream, passive, commodified, and derivative; consuming (in the negative sense of passive product consumption), rather than consuming in the sense of a passionate obsession or devotion to art or criticism.



This has changed significantly in the last twenty years, not only due to a rising feminist interest in subculture studies but also with the rise of fan and audience studies. In their pioneering "Girls and Subcultures" (1975), Angela McRobbie and Jenny Garber presciently suggested that scholars turn their attention "toward more immediately recognizable teenage and pre-teenage female spheres like those forming around teenybop stars and the pop-music industry." Even they had trouble seeing what girls do as interesting and importing, noting that "[b]oys tended to have a more participative and a more technically-informed relationship with pop, where girls in contrast became fans and readers of pop-influenced love comics." McRobbie and Garber don't associate being "fans" with participation, and they see girls as "readers" only. In fact, as we know from fifteen years of fan and audience studies, fandom is a highly participatory culture, and female fans also write, edit, draw, paint, "manip," design, code, and otherwise make things.

However, even within this brave new world of mashup, remix, and fan cultures, what boys do (fan films, machinima, music mash-ups, DJing) is often seen by outsiders and critics as better--more interesting, more original, more clearly transformative-- than what girls do (fan fiction, fan art, vidding, coding fan sites, social networking). This normative judgment risks legal consequences.

We are seeking projects (including papers, installations, artwork, video and multimedia presentations) that investigate the ways in which issues of originality and ownership as related to copyright and other issues of intellectual property intersect with this gendered understanding of cultural productions and engagement, especially since these historically female subcultural activities and practices have increasingly become culture.

IP/Gender Mapping the Connections Organizational Details
· DEADLINE for submission of abstracts is DECEMBER 19 at 5:00pm.
· To submit an abstract or project description for consideration, fill in the web-based form at https://www.wcl.american.edu/pijip/ipgender/proposals.cfm . Participants will be notified if their project has been accepted for presentation by January 15. Selected presentations will be eligible for travel scholarships to attend the conference.

· The symposium will begin at 6:00 Thursday, April 23, 2009 at the American University Washington College of Law in Washington, D.C. The symposium will convene from 9:00 am until 4:00 pm on Friday, April 24, 2009.

· To view programs from prior IP/Gender: Mapping the Connections symposia, please visit www.wcl.american.edu/pijip/go/events/ip/gender/ip/gender-mapping-the-connection

· Papers may be published in the American University Journal of Gender, Social Policy & the Law.

· If you are interested in attending the event, but not presenting work, please contact Angie McCarthy, Women and the Law Program Coordinator at angiem@wcl.american.edu for details.

More On Fan Fiction

Jacqueline Lai Chung, William and Mary School of Law, has published "Drawing Idea From Expression: Creating a Legal Space For Culturally Appropriated Literary Characters," in volume 49 of the William and Mary Law Review. Here is the abstract.

This paper examines the influx of secondary creativity involving culturally iconic literary characters (i.e. Harry Potter fan-fiction) and considers whether, and how, copyright law should account for the unauthorized appropriation of these protected literary characters. Traditionally, the courts have held that characters are independently copyrightable if they meet one of two tests: the distinct delineation test espoused by Learned Hand in the Seventh Circuit opinion, Nichols v. Universal Pictures Corporation (1930), or the story being told test put forward by the Ninth Circuit in Warner Brothers Pictures v. Columbia Broadcasting System (1954). These existing standards for character protection focus on the rights and the entitlements of the original author. This paper argues that copyright law should do more to focus on the creative rights of readers, who often seek to employ iconic characters as tools for cultural dialogue and artistic expression. This shift towards readers' rights may require more than just the expansion of fair use principles over a greater number of secondary uses. What is required, more fundamentally, is a re-conceptualizing of the idea of protectibility in the first place. Certain iconic characters, because they are imbued with so much cultural meaning, are no longer singularly-owned forms of authorial expression; they have become, instead, collectively-owned concepts - tools for expression - in a society constantly engaged in creative dialogue. Hence, on the idea/expression continuum that allows copyright protection for expressions but not ideas, culturally-appropriated characters should fall more appropriately into the realm of the unprotected idea, and in this way, allow greater freedom for secondary uses.

Download the paper from SSRN here.

Meanwhile, J. K. Rowling and Warner Brothers are suing Steven Van Ark and his publisher over the Harry Potter Lexicon, a book based on Mr. Van Ark's website, claiming copyright infringement. Ms. Rowling plans to release her own Potterpedia in future. Mr. Van Ark's position is that Ms. Rowling cannot claim to own all works that mention her characters or works. That would bring literary criticism or commentary to a halt. Read more here.

Rights for the Creators of Fan-Fiction and Others Involved in the Creation of Transformative Works

The new Organization for Transformative Works intends to protect "the interests of fans by providing access to and preserving the history of fanworks and fan culture in its myriad forms."

Here's its mission statement:

We envision a future in which all fannish works are recognized as legal and transformative and are accepted as a legitimate creative activity. We are proactive and innovative in protecting and defending our work from commercial exploitation and legal challenge. We preserve our fannish economy, values, and creative expression by protecting and nurturing our fellow fans, our work, our commentary, our history, and our identity while providing the broadest possible access to fannish activity for all fans.

Here are its values:

We value transformative fanworks and the innovative communities from which they have arisen, including media, real person fiction, anime, comics, music and vidding.
We value our identity as a predominantly female community with a rich history of creativity and commentary.
We value our volunteer-based infrastructure and the fannish gift economy that recognizes and celebrates worth in myriad and diverse activities.
We value making fannish activities as accessible as possible to all those who wish to participate.
We value infinite diversity in infinite combinations. We value all fans engaged in transformative work: fans of any race, gender, culture, sexual identity, or ability. We value the unhindered cross-pollination and exchange of fannish ideas and cultures while seeking to avoid the homogenization or centralization of fandom.

Read more in a blogpost from the Chronicle of Higher Education.

Bibliography:

Matthew Hills, Fan Cultures (2002)

Henry Jenkins, Textual Poachers (1992)

Copyright Doctrine and Fan Fiction

Anupam Chander and Madhavi Sunder, both University of California, Davis, School of Law, have published "Everyone's a Superhero: A Cultural Theory of "Mary Sue" Fan Fiction as Fair Use," in the California Law Review. Here's the abstract.

Lieutenant Mary Sue took the helm of the Starship Enterprise, saving the ship while parrying Kirk's advances. At least she did so in the unofficial short story by Trekkie Paula Smith. Mary Sue has since come to stand for the insertion of an idealized authorial representative in a popular work. Derided as an exercise in narcissism, Mary Sue is in fact a figure of subaltern critique, challenging the stereotypes of the original. The stereotypes of popular culture insinuate themselves deeply into our lives, coloring our views on occupations and roles. From Hermione Granger-led stories, to Harry Potter in Kolkata, to Star Trek same-sex romances, Mary Sues re-imagine our cultural landscape, granting agency to those denied it in the popular mythology. Lacking the global distribution channels of traditional media, Mary Sue authors now find an alternative in the World Wide Web, which brings their work to the world.

Despite copyright law's grant of rights in derivative works to the original's owners, we argue that Mary Sues that challenge the orthodoxy of the original likely constitute fair use. The Mary Sue serves as a metonym for all derivative uses that challenge the hegemony of the original. Scholars raise three principal critiques to such unlicensed use: (1) why not write your own story rather than borrowing another's? (2) even if you must borrow, why not license it? and (3) won't recoding popular icons destabilize culture? Relying on a cultural theory that prizes voice, not just exit, as a response to hegemony, we reply to these objections here.

Download the entire Article from SSRN here.
If the fan fiction phenomenon interests you, check out Henry Jenkins' blog here.
Professor Jenkins is the author of Textual Poachers, Convergence Culture, and What Made Pistachio Nuts? Read one of his recent articles in Reason Online here.

[Cross-posted to The Seamless Web]