Dear Fandom: Could You Please Stop Saying That?
This is really just an expansion of a comment I just made in astridv's LJ, but it's been something I've been meaning to say for a while, now. It's coming up in the context of the the FanLib discussion**, but it comes up pretty regularly in one fannish forum or another, and I actually have two free brain cells to rub together this morning, so here goes.
I keep hearing fans say that they themselves think fanfiction is an illegal/infringing activity, and I don't think that it is. There's been no legal ruling that says that it is (and in fact, quite the opposite: whenever unauthorized literary rewrites or retellings have gone to court, they've been declared transformative, and these were for-profit works, not even our not-for-profit pleasure zone.) I think when/if fanfiction goes to court--if it ever does, which I don't think it will--it will be declared to be transformative. There's a huge difference between fanfic--where all the words are mine, that I put down in a unique order to convey a message that came out of my brain, even if the message is as simple as "Rodney and John are in love," and something like music or video piracy, where the mp3 someone gives me is the exact thing that I would have paid for, and all mp3s of a song are identical. Now vidding is a trickier case, because the visual source is theirs and the music is theirs and the uniqueness is in the conjunction/editing, but even then I'm personally optimistic that the effort put into creating the unique message of the vid would be enough to get us a transformative ruling. And these arguments are being made right now about vidding and other forms of DIY filmmaking, by people who really do want to see this creative work legitimized. But fanfic--fanfic's a much easier legal sell, IMO, and slash fanfic even more than gen (because the message is more transformative of the original source; i.e. I am rewriting and transforming work to better accord with my sexual orientation.) Now let me be clear when I say that the arguments I'm making are not about a right to profit, which I think is more complex (though not inconceivable; I think of Poppy Brite's Beatles RPS novel Personal Jesus, for instance, or other literary rewritings like The Wind Done Gone, but never mind for now) but about our right to exist and write and share our work with each other as we've done for thirty-plus years now, and I don't really think that's legally assailable in any way.
All that being said, here's my devil's advocate argument: if I haven't convinced you, if you just read the foregoing and thought, "nah, Ces is on drugs; I'm a thief! I'm a rebel! I'm a bad, bad girl!" then let me say this: it would be a good idea for you not to air your (erroneous) belief that fanfiction is illegal in public. Because if I were the other side's lawyer, I'd say, "Look! See! They themselves think it's illegal." (Can I just say, this is part of where I want to kill myself every time a remix challenge kerfuffle happens and people go, "Hey! You can't tranform my work! That's stealing!" *facepalm*.) The acafan community to which I belong has gotten very sensitive about this, because we now realize that if--and I say if, because again, I don't think it's going to happen, because I believe they'll lose--but IF it goes to court, it's very likely that those of us who publish academic work on fandom could be called or cited as expert witnesses. So nowhere will you find in my fannish or published writings the (erroneous) statement that "fanfiction is copyright infringing." There has been no legal ruling on the matter. There's a hella strong case for transformative use.
This race has not been called, and so IMHO we shouldn't act like it has until it HAS.
Now, until it has, there's good reason to exercise some--some!--caution, in that most people don't want to be the test case. (That doesn't mean we won't win the test case, just that you don't want to get into it without corporate money or a nonprofit institute backing you, cause lawyers charge by the hour.) But there's a big difference between backing down to a C&D (and a C&D doesn't mean they're right; it just means they have a lawyer and you don't) because you don't want to be bothered getting into a mano a mano with some second-rate novelist's lawyer, and backing down because you think you're doing something genuinely illegal. I don't believe you are, ok? I believe that you are exercising your free speech. I believe you are transforming mass media because you have ideas that are worth expressing and protecting.
** a site that's about "bringing fanfic into the mainstream" with an all male board of directors aiming to profit on our female fannish gift economy? What do you think I think? *rolls eyes* But that doesn't mean that they're doing anything illegal or anything that's going to hurt us in a legal way.
Edited to add a link to Rivka's very good fannish legal bibliography which will give you a sense of how these things are being talked about and fought over.
I keep hearing fans say that they themselves think fanfiction is an illegal/infringing activity, and I don't think that it is. There's been no legal ruling that says that it is (and in fact, quite the opposite: whenever unauthorized literary rewrites or retellings have gone to court, they've been declared transformative, and these were for-profit works, not even our not-for-profit pleasure zone.) I think when/if fanfiction goes to court--if it ever does, which I don't think it will--it will be declared to be transformative. There's a huge difference between fanfic--where all the words are mine, that I put down in a unique order to convey a message that came out of my brain, even if the message is as simple as "Rodney and John are in love," and something like music or video piracy, where the mp3 someone gives me is the exact thing that I would have paid for, and all mp3s of a song are identical. Now vidding is a trickier case, because the visual source is theirs and the music is theirs and the uniqueness is in the conjunction/editing, but even then I'm personally optimistic that the effort put into creating the unique message of the vid would be enough to get us a transformative ruling. And these arguments are being made right now about vidding and other forms of DIY filmmaking, by people who really do want to see this creative work legitimized. But fanfic--fanfic's a much easier legal sell, IMO, and slash fanfic even more than gen (because the message is more transformative of the original source; i.e. I am rewriting and transforming work to better accord with my sexual orientation.) Now let me be clear when I say that the arguments I'm making are not about a right to profit, which I think is more complex (though not inconceivable; I think of Poppy Brite's Beatles RPS novel Personal Jesus, for instance, or other literary rewritings like The Wind Done Gone, but never mind for now) but about our right to exist and write and share our work with each other as we've done for thirty-plus years now, and I don't really think that's legally assailable in any way.
All that being said, here's my devil's advocate argument: if I haven't convinced you, if you just read the foregoing and thought, "nah, Ces is on drugs; I'm a thief! I'm a rebel! I'm a bad, bad girl!" then let me say this: it would be a good idea for you not to air your (erroneous) belief that fanfiction is illegal in public. Because if I were the other side's lawyer, I'd say, "Look! See! They themselves think it's illegal." (Can I just say, this is part of where I want to kill myself every time a remix challenge kerfuffle happens and people go, "Hey! You can't tranform my work! That's stealing!" *facepalm*.) The acafan community to which I belong has gotten very sensitive about this, because we now realize that if--and I say if, because again, I don't think it's going to happen, because I believe they'll lose--but IF it goes to court, it's very likely that those of us who publish academic work on fandom could be called or cited as expert witnesses. So nowhere will you find in my fannish or published writings the (erroneous) statement that "fanfiction is copyright infringing." There has been no legal ruling on the matter. There's a hella strong case for transformative use.
This race has not been called, and so IMHO we shouldn't act like it has until it HAS.
Now, until it has, there's good reason to exercise some--some!--caution, in that most people don't want to be the test case. (That doesn't mean we won't win the test case, just that you don't want to get into it without corporate money or a nonprofit institute backing you, cause lawyers charge by the hour.) But there's a big difference between backing down to a C&D (and a C&D doesn't mean they're right; it just means they have a lawyer and you don't) because you don't want to be bothered getting into a mano a mano with some second-rate novelist's lawyer, and backing down because you think you're doing something genuinely illegal. I don't believe you are, ok? I believe that you are exercising your free speech. I believe you are transforming mass media because you have ideas that are worth expressing and protecting.
** a site that's about "bringing fanfic into the mainstream" with an all male board of directors aiming to profit on our female fannish gift economy? What do you think I think? *rolls eyes* But that doesn't mean that they're doing anything illegal or anything that's going to hurt us in a legal way.
Edited to add a link to Rivka's very good fannish legal bibliography which will give you a sense of how these things are being talked about and fought over.