The Future of Fanworks Legal Q&A – Post 1

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Welcome to the third of our Milestone Month events! Today begins the first of four posts with copyright specialists on “The Future of Fanworks.” First up are responses from Dr. Chip Stewart.


1) What do you remember as your first encounter with fanworks or issues surrounding fanworks?

Harry Potter, between the release of the fourth and fifth books, so probably 2003. I remember following news and rumors on Mugglenet and HP-Lexicon and being referred to some of the wilder fan fiction stories.

2) Since that first encounter, have there been any notable changes you’ve seen regarding fandom and fanworks? Are there any things that have endured, or that you think may never change?

I’ve been more of an observer than a reader, so beyond noticing the mainstream appeal of some works — Fifty Shades of Grey, of course — I can’t say I notice much difference. I have been surprised by the pervasiveness of the sexuality, but I don’t think that’s just fan fiction, I think that’s the Internet in general providing a home for things to be published that would’ve been kept quieter before.

The biggest shocker to me, and this is a bit off-topic, is the baseball slash fic, which I found out about in an article by Emma Span when she was at Baseball Prospectus.

Also, watching the relationship between JK Rowling and fans online was quite interesting and perhaps illustrative of the dynamic going forward. Rowling seemed to be a huge fan of the online communities following her, as long as they stayed online and not for actual sale. When the Lexicon was about to become a book, her turn was in a sense confusing (considering her past support for the site) but also not surprising because of the commercial nature.

That was a huge moment. If Rowling tolerates the fan community and allows publishing of the Lexicon without pushing her copyright claims, that would’ve been a huge step to making fan works more culturally (and perhaps legally) acceptable.

3) What are some things you’d like to see happen — or not happen — with fanworks in the future?

I’d love to see a good circuit court decision on a copyright case dealing specifically with fan fiction to provide some guidance, ideally one open to a finding of transformativeness and recognizing the lack of harm in noncommercial works by fans. The cases out there now — such as “The Wind Done Gone” case (Suntrust v. Houghton Mifflin, 11th Cir., 2001) are more about unauthorized sequels or parodies rather than fan works.

The read-write culture is only going to continue to grow, and the expectation of each generation to come is going to be, “I can use that to make new things from my favorite characters and stories.” The Web gives a home for these works to find a public audience. But we don’t have clear guidance that this is OK — so it will all be done under the specter of infringement suits, DMCA takedowns, and/or prosecutions. That’s not good for creativity or culture.

4) Given the increasing visibility of fanworks to both content/source creators and the public, what do you think are some important points to emphasize — or sources to use — when explaining fanworks to people who are unfamiliar with them?

To make the case that these are transformative works and that read-write culture is valuable, even if you don’t quite get it, the books I’d suggest are “Remix” by Lawrence Lessig and “Cognitive Surplus” by Clay Shirky. The example I’d cite is Stephenie Meyer’s support (or at least non-opposition) to the work that ultimately became “Fifty Shades of Grey” initially based on her characters.

5) Do you think the scrutiny from academics, legal practitioners, entertainment industries and the media, have affected the creative freedom of source creators or fan creators? Are there ways in which different online spaces can have rules of engagement that vary based on a person’s particular connection to the community?

I would like to think that academics and the legal community, particularly that portion that spends a good bit of time online, would be vigorously supporting and defending creators of fan works as both core expressive conduct under the First Amendment and as transformational fair use under copyright law. Regrettably, I think the chatter from the entertainment industry and the legislators they prop up seems to drown out advocacy efforts. I don’t see a legislative avenue that will be helpful to fans anytime soon, and it may get worse before it gets better.

So the options for fans are either (a) the courts, which I discussed above, hoping to find that great-facts case that a fair-use-friendly judge will use to stand as a defense for other fan works, and/or (b) having the communities police themselves through the culture they create in their online spaces. As for rules of engagement, I think making those clear on the sites (particularly in the terms and conditions) would be helpful. But overall, the key is promoting noncommercial uses that don’t threaten or harm the character or world the original author has created — or, if a work is going to do this, having a point beyond titillation or snark to help the criticism/commentary argument for fair use. I think we’d want to build a defense stronger than parody to protect fan works in the future because an homage or a new work isn’t really a parody of the original, and courts would recognize that.

6) The OTW proposed designating February 15th an International Fanworks Day to celebrate all things fanworks. Anyone can participate by advocating for, creating, or appreciating the wide variety of fanworks available. How would you choose to celebrate the event?

Give to those who are going to fight the fight. EFF would be my organization of choice.