The Future of Fanworks Legal Q&A – Post 2

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Welcome to the third of our Milestone Month events! Today we continue with the second of four posts with copyright specialists on “The Future of Fanworks.” Today’s responses are from Susan Hall.

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

This is something I need to split between recognising fanworks (and the issues surrounding them) as a distinct category and creating fanworks myself. The first came very much earlier than the second. I don’t believe I encountered my first ’zine until the late 80s or early 90s (it was Blakes 7, Blake/Avon slash and a friend handed it to me – in an honest-to-goodness brown envelope – for me to read on a train to Scotland, without bothering to mention any of the salient points, such as its being both quite explicit and quite meta – it being about Blake & Avon both encountering slash fiction and deciding on the spot to re-enact it.)

From a very early age, though, I’d been creating fanworks in the sense of add-ons to things I’d read, stories I told myself before going to sleep at night, poems and so forth. The works I built on included Hiawatha, Swallows and Amazons, Sherlock Holmes, The Crystal Gryphon and the Seventh Swan (Nicholas Stuart Gray), the latter being something I’d got out of the library which had made a tremendous impression on me.

Once I reached adolescence, it became something which I increasingly set down on paper – my parents bought me my first typewriter for my eleventh birthday – and shared (and swapped) with friends. I went to an all girls’ selective school and so far as I could tell we were all fannish; that was the era of Starsky and Hutch but there were a lot of other fan enthusiasms, including for Star Trek and Doctor Who as well as football, rugby and cricket.

Teachers, too, frequently taught English literature by asking us to write missing scenes or scenes from another character’s perspective; although these were not expressed as being fanworks, they were forms of fan creativity.

However, I was not aware of organised fandom or of fanworks under that name even at university, and though I did a law degree and subsequently a masters with a specific emphasis on intellectual property, issues of legality of fanworks did not arise then, either. I began being involved in online fandom first by participating in the Lord Peter Wimsey yahoogroup and then with Harry Potter for GrownUps, also on Yahoo.

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?

Massive changes have included the move to online means of sharing fanworks, the creation of AO3, the much greater acceptance by TPTB that fanworks exist (not always a positive thing, as the excruciating attempt by Caitlin Moran to force the stars of Sherlock to read explicit slash aloud shows), a much more coherent position being taken on legalities of fanworks.

Things that seem never likely to change are fan feuds, splitting, bickering and online meltdowns, including flame-wars and the more disturbing extremes such as the Ms Scribe and Victoria Bitter affairs.

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

I’d like a much wider acceptance that there is a sound basis for their legality as fanworks both under US and EU law. However, one development I hope can be fended off are the various efforts to monetise and regularise fanworks.

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?

I think it’s important to stress that the simplistic “all fanworks are theft” line peddled by the likes of Anne Rice and Lee Goldberg is, and always has been, completely unsupported in law, even in the more restrictive legal systems of the EU. Furthermore, there are a lot of myths about alleged cases with have been brought and alleged rulings against fanworks, most of which do not stand up to scrutiny.

A report recently commissioned by the EU into the use made to date by European countries of the exceptions in favour of “parody, caricature or pastiche” introduced by the Copyright Directive of 2001 or equivalent local exceptions was unable to find any EU cases where successful legal action had been brought against fanworks by rightsholders.

This is not to deny possible chilling effects on fanworks by take down notices (eg YouTube) as occurred with Newport State of Mind (based upon Empire State of Mind, a hit song by the American rapper Jay-Z). The music video parody, written by M J Delaney and performed by Alex Warren and Terema Wainwright, achieved great success when posted on YouTube last year, but resulted in take down action by the right owners to have it removed from the internet.

Sources to recommend on this are studies commissioned by the UK Intellectual Property office which found no evidence of harm to the economic interests of authors with respect to music video parodies and also the Hargreaves Report making Copyright recommendations to the UK Government.

Hargreaves Report

“The Government should firmly resist over-regulation of activities which do not prejudice the central objective of copyright, namely the provision of incentives to creators. Government should deliver copyright exceptions at national level to realise all the opportunities within the EU framework, including format shifting, parody, non-commercial research, and library archiving. The UK should also promote at EU level an exception to support text and data analytics. The UK should give a lead at EU level to develop a further copyright exception designed to build into the EU framework adaptability to new technologies. This would be designed to allow uses enabled by technology of works in ways which do not directly trade on the underlying creative and expressive purpose of the work. The Government should also legislate to ensure that these and other copyright exceptions are protected from override by contract” (p. 51 Review of Intellectual Property and Growth).

Generally speaking, the creators of fanworks tend to have a very significant overlap with completist collectors of the original source material, the sort of people who attend midnight showings of the Hobbit on the day it opens and then subsequent repeat viewings and then buy the Blu-Ray. Also, I have several times myself bought or watched original material in order better to appreciate fanworks of it, and am aware of numerous other people doing so.

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?

There’s a kind of awareness which was very much not the norm in the early days when I became involved in fandom (back to the slash zines in brown envelopes).

One area of serious concern which has not received the attention which perhaps it should is the privatisation or enclosure of folk works, historical or mythological figures or works which are out of copyright (for example, Mulan, Robin Hood, the Jungle Books, Pooh Bear) by the growing use of trade marks. Although trade marks should only restrict commercial uses of intellectual property, the danger by way of using trade mark law as a way of deterring ISPs from hosting fanworks in future is a danger which should not be overlooked.

A perennial area of annoyance is also the misuse of fan material by “semi-pro” fans, for example the storm relating to the publisher of a “behind the scenes” guide to Torchwood who made use of a significant body of on-line reviews, totalling almost 20% of the book as published. While fans create in a gift economy, the use of such materials in a business or quasi business setting tends to rankle, especially given a perceived gendered division between those who create the works and those who reuse and repackage them.

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?

I am terrible at remembering international days so it’s probably unlikely I will celebrate, though if I were to do so it would be by having an extended reccs post.

Event, Legal Advocacy

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