More on the Organization for Transformative Works

Julie Hilden at FindLaw has a column up on the Organization for Transformative Works. As she notes, I'm a board member. (These are of course my personal views, not those of the organization.)

Unfortunately, the piece suffers from serious misinterpretations, beginning with the idea that OTW is proposing “changes to copyright law.” OTW’s position is not a proposal. Noncommercial fanworks are fair use, which is one reason there are already millions of them freely available online. As she says, authors have the “option” to sue. In general, one always has the “option” to sue. The crucial question is always: can you win?

Hilden’s piece doesn’t suggest that she’s done any research on fan fiction other than checking out OTW’s website (which is just getting started!). If she had looked at the hundreds of thousands of Harry Potter, CSI, X-Files, Stargate Atlantis, and other stories out there, she might have seen just how much fandom has to offer. Indeed, an article in this weekend’s New York Times suggests that success in the modern media environment requires an active, voluntary fan community, including fan fiction.

And this is a part of what it is to be fannish: not to replace an author’s ability to authorize commercial sequels, but to share alternative, noncanonical visions. Hilden fears destroying incentives to create, but over four decades of active, organized fan productions have shown that fan communities are an economic boon, not a detriment. The incentive argument, in other words, is empirically invalid – which is why the factual background missing from Hilden’s piece is so important.

The copyright owner’s response to that is generally: okay, you’re not costing me money, but I could be making more money from you. Thus, Hilden suggests blanket licensing as an alternative, but there are a couple of problems with that. First, as Julie Cohen has explored, creativity is often spontaneous and unpredictable. If people have to pay $100 before writing 500 words about Harry Potter, they will make other plans. This is especially true for younger writers, who are learning valuable writing and editing skills in a community that encourages them – a community that would be much harder to find without fannish enthusiasm supporting it. Anyway, once we’ve got incentives covered, the author’s willingness to be paid for allowing book reviews, critical commentary, or other transformative works isn’t a reason to give her a right to payment.

Second, the blanket has holes: the various official fan communities that exist routinely retain the option to censor. They want fans to “celebrate the story the way it is,” not explore ways in which it might be different. But it’s that very freedom that makes fanworks so vibrant, innovative, and – yes – potentially critical of the originals, whether of their views on race (The Wind Done Gone), sexuality (as with the popular subgenre of slash), politics (consider David Brin’s critique of the politics of Star Wars – a theme that could readily be explored in fiction or in, say, Troops – for more on using fiction to respond to fiction, see here).

Hilden engages in the standard copyright/trademark merger, asserting that even if there’s no incentive interest involved, authors should be able to control the designation of successors as “legitimate heirs.” But I’ve never seen a fan author claim to be a legitimate heir, and whenever authors may claim trademark rights in commercial exploitation of their names, fanworks don’t and won’t affect that. Tom Clancy can license his name as much as he wants; the OTW supports the idea that Anne McCaffrey can pick her son Todd to write all the official sequels to her books.

Hilden then worries that “many unauthorized follow-up works might simply take characters and the story in a different direction, one that might be antithetical to the original.” This is why Hilden doesn’t actually want blanket licensing, despite her initial suggestion. Interestingly, Hilden’s nightmare scenario in which a fan-altered Harry Potter renounces magic, embraces Christianity, and denounces homosexuality was already written years ago – and, though I disagree strongly with that author’s views, that’s not the test for whether criticism of the original is fair. Rather, reworkings that attack the original are, as Hilden recognizes earlier in her column, quite clearly protected by fair use because they operate as a critique of the original. One point to take from this is that the nightmare scenario hasn’t hurt Rowling even though that website has been up for several years. And the fact that Hilden can’t tell we’re already in the nightmare world suggests something about how scary we ought to find it.

Side note: Hilden makes the too-common mistake of saying that there’s a fair use exception for parody. The Supreme Court treated the issue less than transparently in Campbell v. Acuff-Rose, but subsequent cases have made clear that parody in the literary sense isn’t the requirement. Rather, parody is a type of transformative use, and transformation is about adding some new perspective to the original. It doesn’t require humor, or hate.