From time to time, the OTW will be hosting guest posts on our OTW News accounts. These guests will be providing an outside perspective on the OTW or aspects of fandom where our projects may have a presence. The posts express each author’s personal views and do not necessarily reflect the views of the OTW or constitute OTW policy. We welcome suggestions from fans for future guest posts, which can be left as a comment here or by contacting us directly.
Margarita Coale is a commercial and intellectual property attorney in Dallas, who focuses exclusively on the representation of authors, and romance writers in particular. A love of romance novels is one of the few constants in her well-traveled, adventurous life which began in Monterrey, Mexico and included time at a New York law firm. Today, as part of Fair Use/Fair Dealing Week Margarita talks about a legal case and its fannish connections.
How did you first find out about fandom and fanworks?
When we first got a Kindle many years ago, and it got web capability, I started looking for things to read (I had a small child and was trying to find a work/home balance). I came across Archive of Our Own in late 2013, and started to read quite a bit of Sherlock Holmes fandom work. Towards the end of 2015 I started to look into other sites, including fictionpress and literotica, and became quite familiar with Omegaverse and some of the other fandoms. I have many friends who are Supernatural fans and have often discussed those works with them.
These days, I spend a lot of time monitoring our children’s use of AO3 (its tagging system can be challenging), Wattpad, and Reddit, while also dealing with some legal issues for my clients (I have some who publish fanfiction au and also use Radish).
What can you tell us about the A/B/O case you’re working on?
Since there is ongoing litigation, I’m limited in what I can say specifically. But this case is clearly one of the most interesting I have ever worked on. It requires a court to decide what is a properly-filed take-down notice (DMCA) under the U.S. Copyright Act, and whether tropes and a genre created by fans can be used as a basis to claim ownership. This case is the first time that I know of when these particular issues have been presented to a U.S. court.
Our client won its case against one of the parties who filed the multiple DMCAs that we contend were improper (including those filed against an unpublished third book because DMCAs cannot be filed preventively), and we are waiting for resolution against the other party who participated in filing these DMCAs.
Many of our readers are familiar with fandom terms and tropes. Is that something you needed to familiarize yourself with for this case?
Oh yes! I was very lucky to be able to speak to both Rebecca Tushnet and Kristina Busse and pick their brains at length, since as you know, they are both huge supporters, promoters, defenders and fans of fan fiction. In fact, I am now the proud owner of Framing Fan Fiction: Literary and Social Practices in Fan Fiction Communities by Dr. Busse, and many other works that explain and address the phenomenon of fan fiction.
In particular, I had to understand how and when a/b/o was created. That inquiry led me to read many works suggested by Dr. Busse and others to fully understand the interaction of trope, genre and copyright law. My goal was to understand what the a/b/o trope is and how its idea and concepts were created, so I could explain how and why they really belong to the fandoms. From there, I could discuss and frame legal arguments with litigation counsel about why tropes and genres cannot be copyrighted, and why one party cannot claim ownership of knotting, purring, bites, fated mates, isolation, heat, suppressants and other such fan-created, widely-recognized tropes—often used by thousands of writers in a/b/o, whether in fan fiction or for profit. We contend that those terms and tropes are not copyrighted and cannot be copyrighted.
How might this case be relevant for fans’ claims of fair use when they create fanworks?
Fair use has not been directly addressed in the a/b/o case since there was no usage of another’s written work. But the case does present an important question for fans, which is what happens if an author can claim a/b/o concepts as copyrightable. The law has been clear that “ideas” or “tropes” are not copyrightable — for example, the ”friends to lovers” trope used in thousands of stories with that plot line. No author has the right to express exclusive use of that, or any other such trope.
Speaking generally, fair use will always be measured by the standard legal test, in which courts (a) look at the purpose and character used in the work, (b) the nature of the copyrighted work, (c) the amount and substantiality of the portion taken, and (d) the effect of the use upon the potential market. Fans have great latitude to use copyrightable material within that format. However, if the court in the a/b/o case found that the DMCAs were properly filed and a trope is copyrightable, such a holding could raise serious questions about whether a fan-created genre can be claimed by an author who uses it in a publication for money and then tries to stop others from using it in the marketplace.
How did you hear about the OTW and what do you see its role as?
I have been aware of OTW for years. In the last couple of years, in no small part because of my work on the a/b/o case, I have become more familiar with its work and how relevant and important it is. OTW’s efforts in collecting, supporting and providing education about fandoms and fanfiction is significant work and I am glad OTW is doing it. Without OTW, there would be no collective database and related organization to support development of this art form.
What fandom things have inspired you the most?
I have to say that while I enjoy the original work fandoms the most, I absolutely love the Sherlock Holmes fandoms — reading them is addictive. Dr. Busse introduced me to some very good ones that also have a/b/o, and this is now the fandom I enjoy the most. I also have to admit that tagging sometimes gets me, and I end up going down the rabbit hole of many other fandoms too, depending on my mood and the skill of the tagger.
Catch up on earlier guest posts