The Future of Fanworks Legal Q&A – Post 3

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


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

I’m probably of the wrong generation (or too much of a slow learner) to answer this question usefully. In honesty, I should admit that my first real exposure to fanworks was through the legal controversies about them.

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 first learned about fan works at a conference I organized in 1991 (with Martha Woodmansee) around the topic of The Construction of Authorship. One of the standout papers was entitled “Common Properties of Pleasure: Texts in Nineteenth Century Women’s Clubs,” by Anne Ruggles Gere (now at the University of Michigan). When it was read, the discussion pointed out the similarities between the textual practices Gere describes and the emergent world of fan fiction. Gere’s thought-provoking essay is collected in a 1994 volume published by Duke.

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

Probably the most significant development I’ve noted is the convergence of text-based fan writing and new technology, which has given us vidding. I got a chance to learn a bit more about this aspect of the field when I worked on the 2008 Code of Best Practices in Fair Use for On-line Video.

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?

The most important point is that although they are “derivative works” in enormous amounts of legal definition, they are not merely “derivative” in the common understanding of that term. Rather, they are new takes on existing subject matter, and their creators contribute enormous amounts of value added.

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 certainly hope so, at least where the consequences of legal scrutiny are concerned. Creators of fan works should know that much, if not always all, of what they do fits comfortably within the range of follow-on creative practices sanctioned under the venerable copyright doctrine of “fair use.”

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?

It would be great to organize a virtual discussion between creators in the U.S. and elsewhere. Here, they have the enormous advantage of the fair use doctrine — but others are not so fortunate. But there is a movement afoot in Europe to create a new copyright exception for non-commercial transformative works that would be useful if not ideal. Perhaps a forum of the kind I’m proposing could be the venue for a discussion of how creators could get behind this law reform initiative.