Me: I don’t have a general theory of fair use. Like Paul Goldstein (and Michael Madison), I think of fair use as a series of practices that vary by circumstances. The concept of prototypes works here – fair use cases fall into categories, and some examples are central to the category while others are more peripheral but still fair, just as a robin is a “better” example of a bird than an ostrich. See George Lakoff’s Women, Fire, and Dangerous Things: What Categories Reveal About the Mind.
I’m interested here in what creators and readers say about fair use, not lawyers. Steven Brust said that he didn’t have any choice about writing an unauthorized Serenity novel. It’s been said that sculpting is a matter of carving a block of marble until the statue emerges; what was inside Brust’s block of marble this time around was a Firefly-class spaceship. The original work spoke to him; it seemed natural to speak back – maybe even rude not to do so. Alice Randall had a similar reaction to Gone With the Wind: the book consumed her, hurt her, made her want to speak back.
There may well be good reasons to limit commercialization of transformative uses to works that we don’t want copyright owners to have any control over – reviews, criticism, parody – but even works that don’t have those features can be transformative, creative responses to existing works. (A side note: I think this is a way to understand the Dr. Seuss case – the court simply didn’t believe that the authors had any desire to speak back to/speak about The Cat in the Hat.)
Connected to the idea of consulting creative communities to define fair use is the idea of user-generated fair use guidelines. The recent fair use guidelines for documentary filmmakers were not negotiated with large copyright owners. Negotiated rules would have been too restrictive – we saw that with the Classroom Guidelines – and, if a use is actually a fair use, the copyright owner has no right to control it anyway. Though the filmmakers have made the most progress in formalizing guidelines, I have focused on a different set of groups of people who create without attempting to get paid: fans.
It’s important to document fan creative practices even if individual creativity is spontaneous and unorganized. We can provide theories, frameworks, and histories to explain the importance of fair use. One example is the use of remixing and fanworks in education. Beginning with familiar texts is a great way to develop writing and other creative skills. It makes students more enthusiastic, gives them confidence to experiment, and offers them access to mentoring communities eager to help bring new members into the fold. This is my advocate hat: this is why I’m happy to be part of the Organization for Transformative Works.
What is different about the perspectives of noncommercially motivated creators? Fan ethics center around (1) adding new creative material, (2) providing credit, whether implicit or explicit, and (3) staying out of the commercial channels of mass media. Commerciality and transformativeness are not just two axes considered in factor-one fair use analysis, but they have a deep structural relation. Noncommercial motives lead people to create things you can’t get in the marketplace. Justice Souter unfortunately quoted “No man but a blockhead ever wrote but for money” in Campbell, but no one who ever made up a story for a child’s amusement should believe that.
But some analysis will claim that freely shared new works are commercial under §107 because they could be licensed. As some courts have said in other contexts, isn’t the fan creator getting something for free for which she ordinarily would have to pay? This formulation is odd with respect to new works because we’re dealing here not with a copy but with an abstract right to create derivative works. The fan isn’t getting something for which she’d ordinarily have to pay because she can’t pay for it; she has to make it. It’s odder still because the licensing schemes in the brave new world of user-generated content are royalty-free: the licensors hope to make money with ads. So the fan creator is getting for free something which … she would ordinarily get for free.
These conceptual oddities signal that the licensing argument is fundamentally flawed. The licensing argument’s circularity is well-known and I won’t belabor it; you can’t create a licensing market for parody by being willing to license. I want to make another point: today, blanket licenses come with holes. YouTube and other licensing deals in the “user-generated content” realm all allow the licensor to suppress any particular work it doesn’t like. It may generally be better to ask forgiveness than permission, but the new licenses offer permission without forgiveness.
Copyright law has never had a very good theory of where creativity comes from. Julie Cohen has suggested that this is because creativity is inherently unpredictable and emergent, inspired by a variety of fortuitous encounters. Tuggable “blankets” don’t support creativity because they require creators to guess what will be acceptable. There are thus normative and practical reasons to leave some reworkings out of copyright owners’ control.
In a commercial society, people perceive and deal with noncommercial works differently (“blockhead” being only one example). This is one reason fanworks don’t interfere with, and in fact support, official markets.