Thursday, June 08, 2006

Recent press: fan fiction revisited

I'm quoted in Carol Pinchefsky's Wizard Oil, an article on fan fiction directed at fans, mostly from the copyright owner's perspective. A couple of comments: the article understandably bobbles the issue of available damages for infringement, in two ways: misstating the amount and implicitly misstating the unit of measurement. As most readers of this blog know ("As you know, Bob"), statutory damages -- to which most works inspiring fan fiction will be entitled, since they've been timely registered -- can replace actual damages, which would probably be zero for most fan fiction. Statutory damages range from $200 for innocent infringement to $150,000 for willful infringement. I'm not sure where $10,000 in Pinchefsky's article came from.

But the real devil is in the unit of measurement: Damages are awarded per work infringed, not per infringing work. If a story about Star Trek: Voyager's Seven of Nine and Chakotay were infringing, would the number of works infringed be the number of characters infringed, the number of Voyager episodes infringed (making it less expensive for fans to write post-Season 1 than post-Season 4!), or just one, some sort of overall copyright in Voyager's characters and situations? There isn't much case law on point; broadcast of infringing episodes from a series led to a finding that each episode was a single "work" for damages purposes because each had an independent economic life for syndication purposes, but that doesn't seem to translate when someone starts creating new stories based on the sum total of episodes broadcast. As with other aspects of copyright law, the derivative works right -- especially as applied to characters -- fits awkwardly in assessing damages.

A separate point: Pinchefsky's advice to the hopeful fan writer is to ask permission first. This seems badly mistaken to me; the good news is that it seems hard to imagine that most fans will follow the advice. Many authors (or their publishers) won't answer, simply from inertia or misunderstanding or fear or all the other things that inhibit "yes" answers from people who might be copyright owners, the kinds of things Larry Lessig, Patricia Aufderheide, and others have been talking about for years. Most others will say no, for similar reasons and also because they think their rights extend further than the law allows. If you asked the authors or publishers if it was okay to publish a negative review, I bet you a bunch would fail to reply or say no! A not unrelated point: Pinchefsky's suggestion to contact the author isn't relevant if, as is often the case, the author doesn't own the copyright. (Whom should I contact about Smallville? Even before the WB died, that was an impossible question to answer.)

Since I strongly oppose the clearance culture, I say instead: Don't ask permission to remix, to write post-episode stories and alternate universe stories and stories where the characters wake up with wings or with differently sexed bodies. If we don't hold on to fair use with both hands, we'll find that norms have shifted.

Does this mean I think fan writers shouldn't sign individual authors' releases, as Pinchefsky discusses? Such releases purport to preclude fan writers from later claiming that a copyright owner's sequel/new story infringes a storyline that first appeared in an unauthorized fan work. I understand the copyright owners' concerns, though I think they're extremely exaggerated. There are a couple of stories (as in, literally, two stories) of strike suits -- or threats to sue, since nonlawyers rarely distinguish the two -- by angry fanwriters that circulate in the fan community, but you don't need to be a fan to bring a strike suit, as everyone from Michael Jackson to Dan Brown knows to their sorrow. To the extent the releases make the copyright owners or authors more comfortable with openly acknowledging fan fiction, I'm perfectly comfortable with them, but they should not seduce fans into thinking that asking for permission is the default.

I find myself revisiting fan fiction issues a lot these days, in part because my thinking has changed somewhat since I wrote the original piece, and relatedly because of the explosion of fan photomanipulations, videos, and other works that fall outside the category of literary works; fair use analysis is less prepared to deal with them.

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