American University Program on Information Justice and Intellectual Property
Opening remarks by me: I’ve never been a big fan of Donna Haraway’s cyborg, but I’m increasingly attracted to the image because of the ways in which it turns contradiction into complexity, always in motion. This is important because one challenge of defending women’s fanworks before the law is to protect them from charges of overinvestment (get a life!), incoherence, or unintelligibility from outside. If the standard aesthetic response of lawyers is “I know art when I see it,” then we need to add Catharine MacKinnon’s response: you need to know what I see when I see what I see.
I want to talk about the role of hybridity: First, there’s an obvious contrast between many fanworks and the prototypical fair use of biting, mocking criticism. This isn’t a reason to reject fair use claims, but a reason to endorse multiple prototypes of fair use. And the multiplicity could be founded in part on multiple literary theories refusing to settle on a particular position about the values of originality and difference versus repetition and familiarity, in Kristina Busse’s words.
Fandom is particularly suitable for producing multiple prototypes because multiplicity is at the heart of fan cultures: you can have fifty first-time romantic encounters between the same two characters, or five hundred, because fanworks are not constrained to follow a single canon. Contrast that to the rhetoric of scarcity Zahr Stauffer identifies in attempts to monetize fandom and reward the “best” fans of a particular series. Commercial culture promises an infinity of options but cannot deliver; nobody gets to go home with the entire contents of the store. Selectivity seems so natural to the commercial project that the copyright owners trying to turn fandom into marketing don’t even seem to notice the way in which their baseline assumptions about value, coherence, and scarcity contradict the assumptions of the fans they’re trying to reach.
Multiplicity of actors: Transformation often evokes the idea of one work or author performing a sort of alchemy on an inert original work, which serves as an ingredient. But transformation is more than that: transformation exists in the mind of the author, and in the minds of the audience. This type of transformation is not just dynamic, it is interactional. It is embedded in a context, and this has lessons for the law. Fanworks make particularly salient the ways in which one work’s linkages to other works—its relational and positional attributes—matter to our understanding of every one of those works.
So what does that mean for legal analysis?
Ties in to interdisciplinarity in the humanities: Tisha Turk, for example, brings in film and literary theory to understand fanworks and provide a structure for analyzing transformation in non-word-based works. In this context, it’s important to recognize that even economics has proved to require noneconomic accounts of fair use, as Wendy Gordon’s foundational work on fair use as market failure does. Gordon treats the copyright owner’s preference to avoid criticism as something a market analysis need not respect, though ordinarily private preferences are counted for purposes of efficiency analysis. It is the normative value of criticism, not economic valuation, that does the work of justifying many types of fair use even in the supposedly neutral economic calculus. It is the normative value of criticism, not economic valuation, that does the work of justifying many types of fair use even in most standard law-and-economic analysis.
Interdisciplinarity specifically draws our attention to the poverty of current legal analysis as applied to multimedia works; lawyers are very good at text and not very good at images or music, but fanworks increasingly incorporate multiple media: art and photomanipulation and video, extradiegetic music and snatches of dialogue and text, challenging law to use the insights of other disciplines to assess transformativeness, as Turk does.
Casey Fiesler investigates another hybrid form, the role playing game, which has caused rather a lot of cultural anxiety, at least when it comes in the form of a video game. Some states have tried to regulate violence in videogames in ways they concededly can’t regulate violent films, because the game medium is arguably different in its effects—aesthetic and moral—on players. Our First Amendment-loving courts have not been particularly receptive to these regulatory claims, but that may be more a symptom of lawyers’ inability to see differences in media than a positive sign. As Fiesler tells us, because videogames mix types and positions of authorship—graphics, dialogue and storyline may all have multiple sources—they challenge our existing views of creativity and control, especially when female gamers start participating.
Likewise, Melissa Tatum with Bob Spoo does fascinating work investigating the relationship between words and music in filking; both existing and new music can be used with fannish lyrics, and filkers seem to treat both forms relatively equally. And indeed, most filkers’ understanding of copyright law suggests they feel relatively unconstrained, at least in private noncommercial settings, in their choices of music. Explicit transformation or what’s conventionally called originality are coequal, as perhaps they should be in any artistic community.
Another feature of ties between works is the pervasive dialogue between works and people that might at first seem to exist in separate spheres: Fiesler looks at an inherently collaborative form, the role-playing game, which foregrounds the role of community in constituting the creation as well as the value of the creation. Stauffer and Busse likewise emphasize the web of texts. One feature of a web: Put a foot down on one strand, and everyone else on the web may tremble. Connected to the debate over commercialization: is there a spider at the center of the web? If it can now sense us more easily, will it demand to suck out our juices?
Commercial and noncommercial spaces interpenetrate. De Kosnik asks whether we should retreat from fan culture’s valorization of noncommerciality given that other people make money from us: we are only noncommercial in a particular sense. Given that I don’t think the appropriate baseline is that everything should be paid for by someone else, this is problematic precisely to the extent that it is distributionally unfair, and I think that’s a very hard question.
As de Kosnik points out, there areat least two relevant positions: fans should have to pay copyright owners to share their creative works withothers, or somebody else should pay fans for sharing. Avoiding option one has been a fan priority, even though it may position us badly to take advantage of option two, should option two become a realistic prospect.
I think this focus on noncommerciality makes sense, given that option-one problems remain quite pressing. One legal aspect of the hybridity of paid and unpaid labor, for example, is that noncommercial actors use commercial spaces; how will we deal with that mix of pecuniary and nonpecuniary interests when third parties claim that the noncommercial actors are therefore engaging in commercial use subject to compensation/control requirements?
Dreamwidth: commercial venture designed to be fan-friendly, without preexisting ties in the traditional media. Many things to say about this, but one point I want to make here: it's an open source project involving 80-90% female coders, similar to the OTW’s Archive of Our Own—possibly the largest female-dominated open source projects on the web. There are ties between the ultimate goal--protecting our fan communities—and building these new spaces. It turns out if we want a place to chat, we need to build a meeting house. So now we are carpenters because we are readers and writers and vidders. Likewise, to represent ourselves in academia, fans created a journal, which Karen Hellekson is going to talk about, and thus started to negotiate academic power, Open Access publishing, and the power of categorization, including the ISSN. Skills are connected in sometimes surprising ways. Laura Murray is going to talk about copyright activism in Canada—women may understand copyright as relevant to the extent that they negotiate the divide between underground safety versus public participation.
What can we get out of making these links? Drawing on Carol Gilligan’s concepts of moral maturity, based on studies of certain women’s moral reasoning: I would argue that maturity in copyright’s theory of creativity requires both independence (respect for dissent) and connection (respect for the community). Women in fan communities seek recognition as creators and regularly recognize the claims of other creators in the form of credit and compensation. Asserting their creative independence and their creative embeddedness at the same time—their basis in and distinctions from the commercial economy--fanworks offer a working model of hybridity in creative production, one the law would do well to recognize.