Copyright, creativity and incentive: the problem of <br />Kevin L. Smith, M.L.S, J.D.<br />Duke University<br />
Pulp fiction & Fan fiction<br />
Different incentive structures<br />Pulp Fiction<br />Written for money<br />Copyright could prove trap for unwary author....
Infringing copyright?<br />Lori Jareo got a cease & desist letter from LucasFilms after she put her self-published work of...
A remix culture for context<br />
Ideas versus<br />Expression<br />
Fair use<br />Campbell v. Acuff-Rose Music, 510 U.S. 569 (1994)<br />
Fair use<br />The Wind Done Gone<br />Suntrust v. Houghton Mifflin Co., <br />252 F. 3d 1165 (11th Cir. 2001)<br />
Not fair use, but….<br />The judge strongly supported the legality of unauthorized secondary works.<br />
Not fair use<br />Welcome to Twin Peaks: A Complete Guide to Who’s <br />Who and What’s What<br />Twin Peaks <br />v. Publ...
Not fair use<br />SAT: The Seinfeld Aptitude Test<br />Castle Rock Entertainment, Inc. v. Carol Publ. Group, 150 F.3d 132 ...
Not fair use<br />J.D. Salinger v. Fredrik Colting, writing under the name John David California (SDNY 2009)<br />
Violating social norms (& copyright?)<br />Putting her self-published work of fan fiction, based on Star Wars, for sale on...
Everything I need to know I learned from Lessig (and Boyle)<br />
The battle lines are drawn<br />
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Fan fiction and copyright


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A presentation given in October 2010 at "Kapow," a conference on pulp fiction held at Hofstra University

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  • Good afternoon. I am delighted to join you today and honored to be part of the distinguish line of Joseph G. Astman symposium scholars.As you can see from my title, I want to change the focus just a bit for this part of the conversation and talk about the issues associated with fan fiction, especially the issues around copyright and the goal of copyright, which is to create an incentive for creativity.As Emma Watson’s reaction in this picture shows, fan fiction almost always draws a strong opinion. Love it or hate it, most people who encounter fan fiction do not remain neutral. That includes, I fear, our courts.There are several reasons for talking about fan fiction during a conference dedicated to pulp fiction.First, “fanzines,” one of the earliest regularized outline for fan fiction, arose in roughly the same era as pulp fiction. Both were popular movements that created what one set of scholars has called “scorned literature,” but both are scorned literature with large and devoted audiences.Pulp fiction, of course, was created for a mass consumer audience. In our time, the Internet has radically blurred the line between creator and consumer. In the digital age anyone can become both author and publishers, and can find a significant audience. As Communications and Media scholar Henry Jenkins has written:“To speak as a fan is to accept what has been labeled a subordinate position within the cultural hierarchy… Yet it is also to speak from a position of collective identity, to forge an alliance in defense of tastes which, as a result, cannot be read as totally aberrant or idiosyncratic.”In these changed conditions, fan fiction is not only an extension of the pulp fiction publishing movement but is even, as I will argue in a moment, a limit case for considering the role of copyright in all creative production.
  • Pulp fiction, especially serial publications, often revolved around heroes – Doc Savage was a favorite of mine at one point in my youth. Fan fiction also develops around heroes from the original work, but it often does so in a subversive way. The suggestion of erotic relationships is one common form of this subversion, as this illustration from a Star Trek fan creation indicates. But the larger pattern is one in which fans claim or reclaim characters and environments from an original work in order to expand and retell stories to one another.A widely accepted definition of fan fiction from law professor Rebecca Tushnet is as “any kind of written creativity that is based on an identifiable segment of popular culture, such as a TV show, and is not produced as professional writing.”Fan fiction is not a small operation. One dedicated web site,, offers readers over 450,000 stories about Harry Potter and his friends alone. There are 300 stories about Sherlock Holmes, 600 about James Bond, and almost 200 based on the works of Homer. When we look at fan fiction based on TV and Movies at the same site, we find almost 40,000 stories about Buffy the Vampire Slayer , over 7,000 of which are rated “mature.” Hannah Montana is subject to 11,000 stories, only 45 of which are rated mature, thank God. There are also 87 stories based on the Perry Mason TV show, but none based on the books, and almost 1000 using the characters from Hogan’s Heroes.In “Textual Poachers,” his ethnography of fan fiction, Henry Jenkins invokes the theory of “heteroglossia” from the work of Mikhail Bakhtin to consider the process by which fan authors transform “borrowed terms” into “resources for the creation of new texts.” Bakhtin’s description of the layeredness of language, of course, is an account of all linguistic creation, and if we take its application to fan fiction seriously, we begin to see that fan fiction is not an aberration but is merely a limit case for all creativity. All new writing implicates the borrowed weight and history of each word, phrase, characterization and setting that it evokes. In that context, the degree to which copyright law supports or undermines the creation of fan fiction is a measure of how well it serves its overall purpose of providing incentives for creativity.
  • If the purpose of copyright is to incentivize creativity by provide a monopoly that protects profitability, we must acknowledge that that incentive works better for some than for others. Mickey Spillane is representative, I think, of the reason most pulp fiction was written – for money. Copyright works well in this commercial context, although even here a impecunious author often surrendered his rights with little concern for long-term profits, thus falling victim to the traditional trap in which copyright’s long term of protection benefits publishers but often not authors.Fan fiction, of course, is usually written for a different reason; fan authors, like most academics, fall into that category of blockheads, according to Samuel Johnson, who write for a different set of rewards. The statistics I quoted a moment ago show that the incentive to write fan fiction is hardly lacking; people write to be read and to gain a reputation or a following. Jenkins calls this a “contemporary folk culture,” and it clearly ahs its own set of rewards, just as the academy does. But those rewards are not accounted for or supported by our copyright law, which leads to the kind of problems I am going to tell you about.
  • The most basic question we need to ask when looking at copyright issues in the context of explicit borrowing is what the relationship is between the original author and the borrower. Fan fiction usually exists between the two extremes illustrated here – a commercialization of a fan production, on the one hand, which LucasFilms treated as clear infringement, and a political comment where any copyright claim would likely give way to First Amendment values. This simple distinction illustrates the broader point about copyright and fan fiction that Rebecca Tushnet makes:“Because creativity is messy and unhomogenized, the tendency to generalize to ever-broader copyright rights is a problem. Using multiple models of intersecting creative practices, including fan reworkins and partially commercialized production, would provide a better basis for evaluating copyright’s effect on creativity.”Fan authors know, of course, that they are “poaching” on the work of another. But as Casey Fiesler writes, “Fans are not trying to subvert copyright holders; the plight of fans is to love something so much that they want to make more from it.”In this context, the more specific question we need to consider is how much control over characters, settings and narrative events original creators need in order to be incentivized to continue to create and at what point, if any, will that level of control begin to create a chilling effect that undermines future creativity in stead of supporting it.
  • The Internet, of course, supports a remix culture in which it is easy to borrow, modify and publish changes rung on original work. Here, for example, is one of several New Yorker cartoons that have been “mixed” with lyrics from Kanye West songs. In this case, both West and the New Yorker have expressed amusement and approval. But there are often disputes, several of which we will now examine. The two copyright principles that underlie these disputes are, first, that copyright protects expression but not ideas, and, second, that a new work that is transformative, especially in a way that does not create market competition, is most likely to be considered fair use. Cases involving those principles form the legal landscape not only for fan fiction per se but also for the growing remix culture as a whole.
  • The line between expression, which copyright protects, and ideas, which it does not, is very hard to draw. The case on Dan Brown’s “Da Vinci Code,” which borrowed its main plot theme from an earlier work of purported history called “Holy Blood, Holy Grail,” illustrates the principle but not the difficulty of applying it.[Spoiler Alert] Brown’s book is based on the premise that Jesus survived the crucifixion, married and had descendents who are alive today. Those same claims were made 20 years earlier in a book by Michael Baigent; a fact Brown acknowledge by naming one of his characters with an anagram of Baigent. Brown was sued in the UK, and the court found that there had been no copyright infringement because what Brown took was the idea from Holy Blood, not any protectable expression.This principle ought to support lots of fan fiction, but over and over again courts have given protection to plot elements, settings and, especially, characters. Most obviously in the case of characters, the line between ideas and expression is very difficult to draw. For that reason, the idea expression dichotomy is often a secondary issue in cases involving new works from old. Fair use is usually the main event, although we will encounter idea/expression again as we proceed.
  • Fair use is deliberately indeterminate and subjective. It is intended to have the flexibility to meet new situations and address new technologies. But since the mid-80’s one principle has been pretty clear in fair use jurisprudence. If a work is held to be transformative, it is much more likely to be found to have made fair use of whatever the original work was.In 1994 the Supreme Court endorsed the transformative analysis in a case involving Roy Orbison’s iconic song, “Oh, Pretty Women.” The Rap group 2 Live Crew had made and sold a parody version of the song on their “Nasty as They Wanna Be” CD, and Orbison’s publisher sued. Even though the 2 Live Crew version was a commercial product and used almost all of the original song, the Court found fair use. The reason was that the rap version was a new work, a parody that the Court said made fun of Orbison’s vision of feminine beauty, which may have been a stretch. More importantly, the Court pointed out that there was no market competition between the two works; no one intent on buying Roy Orbison would decide that 2 Live Crew was an adequate substitute, although a truly eclectic fan might buy both.Most fan fiction is non-commercial and does not seem to threaten any market competition for the original works. So it seemed like the Pretty Woman case should be good news for fan fiction, and initially it was.But there is a problem – one of the exclusive rights in copyright is the right to prepare derivative works. The difference between a permitted transformative work and an infringing derivative work has never been clear, and the analysis of market competition has not been adequately distinct and defined to make for any kind of certainty.
  • The Eleventh Circuit Court of Appeals got the issues right, in my opinion, in the case of “The Wind Done Gone,” a re-telling of Gone With the Wind from the perspective of the slaves in the story. The “Wind Done Gone” was marketed as a parody, and the Appellate court applied the reasoning from the Pretty Woman case to lift an injunction and permit publication of the new work. They found that the Wind Done Gone was transformative and created a new work that would not compete with the original. They rejected claims that the new version associated Margaret Mitchell’s classic with themes she had explicitly eschewed, miscegenation and homosexuality. Thus they denied the estate of the original author a level of control over all subsequent borrowings. If this case were followed more often, the situation would be much better for fan fiction and other kinds of secondary works.
  • A similarly sensible decision was made in the Harry Potter Lexicon case, where the judge ‘s opinion is strongly supportive of the right of others, presumably fans of a book or movie series, to create secondary works like the Lexicon. The ruling firmly rejects the idea that the original author should have control or veto power about what is written about his or her work. In the specific instance, however, the Lexicon was found to be infringement and not fair use because of the large amount of verbatim copying, especially from two small works that JK Rowling has published. These works, about Quidditch and Magical Beasts, were reproduce virtually whole in the Lexicon, and that was too much for the judge. Nevertheless, the case is a strong defense of fair use for secondary literature done right.There are two other interesting points about this case.First, JK Rowling and the movie production company admitted that when the Lexicon was simply a website, they actually used it to remind themselves of details from the stories and to ensure continuity. They only filed a lawsuit when the website became a published book.Second, since the decision the Lexicon has been reworked in accordance with the ruling and has been published with the consent of the original plaintiffs. Again, secondary literature should be defensible as fair use. Unfortunately, other courts have not grasped this point very well.
  • In the Twin Peaks case, for example, a court found that this guide to the settings, characters and events from the show was not fair use. The Second Circuit Court of Appeals held that the direct quotations, paraphrases and detailed descriptions of plot, characters and settings adversely affected the market for authorized books. This is a troubling ruling because of the level of control it gives to an original author. Carried to its logical conclusion, all secondary works could have such an adverse affect, meaning that only authorized secondary works would be allowed. Not only would fan fiction suffer if courts followed this line of reasoning; critical literature as a whole would be reduced merely to laudatory, and thus licensed, commentary. What could be more adverse to the market, after all, then a critical review, especially one that gains credibility by quoting extensively and describing plots, characters and settings. Fortunately, courts have sometimes realized, as they did regarding the Wind Done Gone, that this result is incompatible with the First Amendment. As for the market harm concern, I have never seen a solid argument about why one secondary work should not simply compete in the the market with other, different secondary work. Here copyright is being used to prevent competition and support a monopoly well beyond the exclusive rights bestowed by the copyright act.
  • Perhaps the extreme case of an anti-free speech analysis regarding secondary literature came in the case, also out of the Second Circuit, involving the Seinfeld Aptitude Test, a trivia book based on the popular, and thoroughly trivial TV show. Here the court classified trivia not as unprotectable facts or ideas but as protected expression, since the incidents that gave rise to the trivia sprang from the imagination of the show’s writers. According to the Court, the mere fact that George tried to pass himself off as a marine biologist in order to impress a women was, when phrased as a trivia question, including three false answers, infringed the copyright in the episode where the plot line unfolded. Such a ruling, of course, makes a mockery of the structure and intent of copyright law, and as with the Twin Peaks case, it poses a real threat not only to fan fiction but to any secondary work that builds on a previous production of popular culture.By the way, in this case, as in that of the Harry Potter Lexicon, the TV producers originally liked the book and asked for free copies of it for promotional distribution. Only as the TV show became popular enough to spawn licensing opportunities did they decide to sue to stop the publication of the SAT.
  • My last bad example, also the most recent, is a case nearly identical with the Wind Done Gone scenario, but which was decided in the opposite way.60 Years Later is an unauthorized sequel to Catcher in the Rye, in which we encounter the now 76 year old Holden Caufield as a grumpy old man in New York. He even meets J.D. Salinger (himself a character in the novel) and chastises him for not having written anything at all over the elapsed 60 years. Publication of this new novel was enjoined by a Judge in New York last year under the assertion that it infringed Salinger’s copyright in Catcher. The evidence for “substantial similarity” was such things as the use of the epithet “phony” and a trip to visit New York City. No serious attempt was made to apply the distinction between unprotectable ideas and copyrighted expression. Fair use was rejected because the judge did not think 60 Years Later was a parody, in spite of the fact that multiple cases over the last 20 years have held that non-parody works can still be considered transformative. Here the judge simply noted that in the Wind Done Gone case the Court did find a parody and thus distinguished the Salinger case by asserting that there was no element of parody in 60 Years.In the Salinger case the judge says pretty explicitly that no unauthorized sequel could ever be non-infringing, so this case poses a real obstacle to fan fiction. No wonder that a basic rule in fandom is to fly under the radar. It is also worth noting that the judge here, and in the appellate court that vacated the injunction but agreed on the issue of fair use, asserted that 60 Years Later caused market harm even though it was clear that Salinger himself planned no further books about Holden Caufield. The “market” that was being protected was really Salinger’s alleged right to prevent anyone from talking about his character if he did not want to do so himself or to license others.
  • If we generalize from these cases, one of the obvious points is that the secondary works did not run into trouble until they were commercialized and offered the prospect of making real money. There is simply no point in bringing a lawsuit unless there is profit to be protected or the possibility of collecting a significant judgment. Most fan authors are likely to be “judgment-proof,” which simply means unable to pay a large award of damages.Even when this is not true, one of the primary social norms in the fandom community is to remain strictly non-profit. The attempt to sell this work of fan fiction brought threats not only from LucasFilms, but scorn and outrage from the fan fiction community.It is worth considering the role of social norms in governing fandom. Jenkins and Tushnet help identify three such community norms.First, there is, as I have said, the rule that fan fiction should remain non-commercial. In many ways this is the norm that most protects fan authors from lawsuits, but it is also the most problematic. As we have seen from the cases, many works on the cusp of fan fiction, secondary works about a TV Show or parody/sequels to well-known novels, are commercialized and it is hard to see why these works should not be allowed. We will return to this problem.A second norm for fandom is attribution. Most fan stories begin with a disclaimer that reminds readers that they did not create the characters in the story and that the original creators do not endorse or authorize the fan work. As Tushnet puts this norm it has both a negative and positive aspect: “Media fans who create their own derivative works reject the claim that copyright owners should have total control over use of their works, proposing instead theories of equity, mainly centered on attribution.”These theories of equity make plagiarism the cardinal sin of fandom – both plagiarizing by not acknowledging the source of the original work and plagiarism from another fan author. Fandom is build on the maxim “what is mine is mine and what is yours is yours.”A final norm in the community of fan authors is to not attract attention. The cases I have outlined indicate strongly why this is important. In fact, it is surprising, and testimony to the strength of the urge to create, that the threat of litigation has not deterred more of the vast canon of fan fiction. When Lori Jareo put her book on Amazon, she also violated this norm. By the way, the rating system I referred to earlier from the site is another instantiation of this norm; by offering a tool to help folks avoid stories that might offend them, the site hopes, presumably, to avoid excessive attention from creators and the media in general.
  • This collection of norms from within the fan fiction community sounds very familiar to copyright specialists and librarians, since they track pretty closely the attributions of the Creative Commons license, which was created to allow authors, photographers, musicians and filmmakers to share their work on the Internet in less restrictive, but not totally uncontrolled, ways. They also push us to consider what is really important in copyright.Attribution is something most authors want, but that US copyright law does not protect. Almost every other nation includes an attribution right, one of the so-called “moral rights” within their copyright statutes. That the US does not, and does not even require attribution for something to be considered a fair use, is one of the reasons that the Creative Commons licenses, which leverage copyright ownership to enforce attribution, are so popular. Academics, like fan authors, depend on attribution in order to reap the kind of rewards for which they write; both activities are “paid” in terms of reputation, although there is certainly more cash value to a good reputation in academia than there is in fandom. Because attribution is so important to academics, that is one community for whom the Creative Commons license actually tends to work better than mere reliance on copyright law does. For fandom as well, this value, embodied in Creative Commons licensing, is perhaps the paramount value and the thing, from their perspective, that copyright should most protect.Most fan fiction is also, like much that is licensed under Creative Commons, non-commercial. This probably accounts, as I have said, for the relative few court cases that challenge fan fiction, although there may well be many cease and desist letters we never hear about. Fan authors usually show little inclination to sell their works, and many of them – lets be frank – are probably not of sufficient quality to be sold. But it is also possible that this non-commercial norm, and the increased fear of litigation when and if it is disregarded, actually impoverishes our culture overall. Certainly the Seinfeld Aptitude Test and a sequel to Catcher in the Rye would enrich discussions of those works within the sub-cultures that study and cherish the original works. And our view of Gone With the Wind will never be the same, I think, after we have read the Wind Done Gone. So the rule that fan fiction should never be commercialized, and the hazards encountered by other types of secondary works based on original cultural products, suggests that copyright should readjust its focus to more finely understand markets and to permit secondary works that genuinely do no harm to the legitimate market for the original work.
  • Fan fiction and copyright

    1. 1. Copyright, creativity and incentive: the problem of <br />Kevin L. Smith, M.L.S, J.D.<br />Duke University<br />
    2. 2. Pulp fiction & Fan fiction<br />
    3. 3. Different incentive structures<br />Pulp Fiction<br />Written for money<br />Copyright could prove trap for unwary author.<br />Fan Fiction<br />Usually non-commercial<br />Incentive is recognition, sense of involvement with a favorite book, movie or TV show<br />“No man but a blockhead ever wrote, except for money.”<br />“Creative urge, hell; I get a money urge!”<br />
    4. 4. Infringing copyright?<br />Lori Jareo got a cease & desist letter from LucasFilms after she put her self-published work of fan fiction, based on Star Wars, for sale on<br />Ron Paul did not.<br />
    5. 5. A remix culture for context<br />
    6. 6. Ideas versus<br />Expression<br />
    7. 7. Fair use<br />Campbell v. Acuff-Rose Music, 510 U.S. 569 (1994)<br />
    8. 8. Fair use<br />The Wind Done Gone<br />Suntrust v. Houghton Mifflin Co., <br />252 F. 3d 1165 (11th Cir. 2001)<br />
    9. 9. Not fair use, but….<br />The judge strongly supported the legality of unauthorized secondary works.<br />
    10. 10. Not fair use<br />Welcome to Twin Peaks: A Complete Guide to Who’s <br />Who and What’s What<br />Twin Peaks <br />v. Publications Int'l, Ltd. <br />996 F.2d 1366 <br />(2d Cir. 1993)<br />
    11. 11. Not fair use<br />SAT: The Seinfeld Aptitude Test<br />Castle Rock Entertainment, Inc. v. Carol Publ. Group, 150 F.3d 132 (2d Cir. 1998)<br />
    12. 12. Not fair use<br />J.D. Salinger v. Fredrik Colting, writing under the name John David California (SDNY 2009)<br />
    13. 13. Violating social norms (& copyright?)<br />Putting her self-published work of fan fiction, based on Star Wars, for sale on also made Lori Jareo the target of ire & mockery from within the fandom community<br />
    14. 14. Everything I need to know I learned from Lessig (and Boyle)<br />
    15. 15. The battle lines are drawn<br />