OTW Signal, September 2022

Every month in OTW Signal we’ll take a look at stories that connect to the OTW’s mission and projects, including legal, technology, academic, fannish history, and preservation issues that are important for fandom, fan culture or transformative works.

In the News

Netflix’s action against the creators of a Bridgerton musical meant that several news outlets reached out to OTW’s Legal Advocacy project for comment. One of them was U.S.’s NPR, which quoted Rebecca Tushnet:

In a fair use case, Tushnet says, several factors are considered, including the purpose of the use, the nature of the work that was copied, the amount of original material taken, and the impact on the market.

“There are commercial fair uses, but it’s definitely more risky,” Tushnet says, adding that they require more justification. “Plenty of justifications can be found, from criticism, commentary, even imaginative reworkings that tell you something about the source text. The more critical [of the source text] a commercial reworking is, the more likely it is to be found to be fair use.”

Another article interviewed both Casey Fiesler and Rebecca Tushnet:

“I’ve seen a lot of people implying that because [Barlow and Bear] are commercializing it, that means it’s not fair use,” Fiesler told TechCrunch. “Whether something is commercial or non-commerical is part of a fair use analysis, but it’s part of only one factor.”

Fair use analysis looks at the purpose of a work (is it for-profit?), the amount of copyrighted material it uses, the nature of the work (how transformative is it?) and how the work might economically impact the original.

Fiesler told TechCrunch that there have been many examples of commercial fan works that were determined in court to be fair use, though there isn’t as much case law and precedent, since these disputes are often settled before they reach a judge.

Casey gives more details on both this lawsuit and other fair use issues on TikTok.

An article focusing on Buffy the Vampire Slayer connected to various OTW projects. One part linked to Fanlore articles, while another linked to our Legal Advocacy project page. Then there was the reference to AO3:

Many fan writers do write original work, and do it well. Established authors, too, from S.E. Hinton to Naomi Novik, have admitted that they’ve themselves written fanfiction (and continued to do so despite achieving commercial success as writers.) On top of that, countless fan works display an ingenuity of plot and characterization such that the source material is only apparent through a light dusting of names and places. They augment the world-building of the canon in such interesting ways that sometimes the original work feels flat and colorless upon revisiting it. And fans who are this devoted to a work can keep the interest in it alive long after the initial buzz fades. Over 35,000 Buffy the Vampire Slayer fanfics have been posted on the web’s premiere fanfiction archive, Archive of Our Own, since the show ended in 2002.

If you’re a Buffy fan yourself, you can also check out two of the OTW’s other major projects. Open Doors has imported several Buffy fanfiction archives to AO3, and Transformative Works and Cultures has several articles focusing on Buffy and her fandom.

OTW Tips

Downloading content into various formats is one of the pluses of accessing fanworks through the Archive of Our Own. Last month our AO3 Documentation team updated the Downloading FAQ as well as a few small changes to other FAQs that can help you learn more about how to do things at AO3.

We want your suggestions! If you know of an essay, video, article, podcast, or news story you think we should know about, send us a link. We are looking for content in all languages! Submitting a link doesn’t guarantee that it will be included in an OTW post, and inclusion of a link doesn’t mean that it is endorsed by the OTW.

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