Let’s Get Transformative
The Organization for Transformative Works (OTW) is a nonprofit organization established by fans to serve the interests of fans by providing access to and preserving the history of fanworks and fan culture in its myriad forms. We believe that fanworks are transformative and that transformative works are legitimate.
Among its many plans is “Establishing a legal defense project and forming alliances to defend fanworks from legal challenge,” which basically means that the OTW is planning to make the argument that fan writing is fair use under copyright. Or, as the organization states in its “Our Vision” statement: “We envision a future in which all fannish works are recognized as legal and transformative and are accepted as a legitimate creative activity.”
I think this is a very interesting idea, and off the top of my head I think OTW will have a very hard time establishing the legality of all fannish works. Here’s why, and note bene that I am not a lawyer, these are just my thoughts as a writer and someone interested in copyright.
1. First, and as a simple, practical matter, there’s the OTW on one side of this legal argument, with what it identifies as fandom. On the other side of this argument is an entire entertainment industry, with almost unlimited phalanxes of lawyers and lobbyists. This point isn’t about legal right and wrong; it’s a notation of the relative amount of resources each side can throw at the issue.
2. Related to point one, to the extent that fandom currently does what it does, it does it because of the benign neglect or tolerance of the copyright holders of the works the fans are working with. If and when a fan, told by, say, NBC Universal to take down her Battlestar Galactica fanfic, decides to make the legal argument that her work is transformative and fair use, thus obliging the corporation to show up in court to make a counter argument (i.e., to throw more resources at the problem than a simple Cease and Desist) and the fan shows up in court with the assistance of an umbrella group dedicated to the proposition that all fan work is legal and transformative, I suspect the era of benign neglect or tolerance of fan activity will be at a sudden and pronounced end. Because now the fans are saying, why, yes, this really does belong to us, and corporations who have invested millions in and can reap billions from their projects will quite naturally see this as a threat. From there it’s all DMCA notices and entire fan sites going down.
As with the first point, this point isn’t to the issue of what’s legally right or wrong, but it seems certain to me that it will have an impact on fan works and community, and that the immediate impact could be impressively negative. Corporations will get bad press and ill will over such actions, but ask the RIAA how much it minds being viewed as the bad guy.
3. I suspect very strongly that the issue of what’s a transformative use of a work is not going to be so cut and dried as to allow the OTW to ever achieve its goal of seeing all fan work as legal. For one thing, not all fan work is substantially transformative; some of it is very simply a fan writing more about their favorite point of view character, doing the things that favorite point of view character does, in only slightly different circumstances.
And even when there is transformation, the question is how much is enough. The OTW site suggests “[a] story from Voldemort’s perspective is transformative,” presumably because Voldemort is not a point of view character in the Harry Potter canon. I doubt a lawyer from Scholastic would agree, and would likely cite the many remaining non-transformed aspects of the story — including setting, the character’s relationship with other Potterverse characters, etc — as evidence against the claim (and also, to be picky about this particular example, there’s Voldemort pov in Chamber of Secrets, via Tom Riddle’s diary, and in Order of the Phoenix, when Harry sees Voldemort’s attacks on other characters through Voldemort’s eyes). A good lawyer would try to make the case a Voldemort pov is not transformative, merely derivative, and therefore perfectly well-protected under copyright.
Campbell v. Acuff-Rose Music, Inc., which is the ruling the OTW holds up as relevant to its cause, says that the more transformative a work is, the less other factors for determining fair use will play into a final determination. 2 Live Crew’s song “Pretty Woman” is rather significantly transformative of Roy Orbison’s “(Oh) Pretty Woman,” unless one thinks Roy Orbinson really did want people to think his pretty woman had as much hair as Cousin Itt. The question is whether a story from Voldemort’s point of view is as significantly transformative, if, say, it recounts his final battle with Harry Potter, in which the setting, plot, characters and resolution of the story are already established and the only thing that changes is through whose eyes we see the event.
I rather strongly suspect there is no one true path to transformation sufficient for fair use purpose, and even if there were, that all fans would follow it. I’m not a fan writer myself nor was ever one, but from what I know of fanfic, no little amount of it is simply fans wanting to see their favorite characters doing more of what they do; it’s difficult to reconcile that with the strictures of transformation. Essentially, you can’t put characters in new and funny hats, or hand some character other than the main one the microphone, and then say “Yay! Now you’re transformative!” Corporate lawyers will eat you for lunch and burp out your bones.
4. Transformation is a significant issue in fair use and can be increasingly so the more transformative the work; nevertheless there are other criteria that come into play here, which will not be insignificant in any case regarding fair use. Personally I suspect this will especially come into play if fans try to make economic hay out of their work; corporations are particularly sensitive to anyone other than themselves making money off of their copyrighted works. Well, you say, fans don’t do that. Yes, well. I remind you of Lori Jareo. My point is, shoving all one’s chips onto “Transformative” is not necessarily going to work on the grand roulette wheel of acceptable fair use.
5. The OTW, whether it intends to or not, seems to be carving out a special class of intellectual endeavor — “fanwork,” — which simply by dint of being fanwork is afforded certain protections under fair use. This has interesting implications. The first is, who gets to adjucate who is a “fan” and gets to write fanwork? The OTW value statements say “[w]e value our identity as a predominantly female community with a rich history of creativity and commentary,” which is fine but I think sort of brushes over a fair segment of fanwork which to me appears to be predominantly male (see: lightsaber dueling videos), but more to the point appears to suggest some people are fans covered under the umbrella of “fanwork” but some may not be. Will there be a board of fan certification, or will merely saying “I am a fan” be performative, and thus one’s work is covered by the fanwork protections? And how far would such protection go?
As an example, let’s say I write a novel set in the universe, of, oh, I don’t know, Allen Steele’s Coyote series, because I love me some Allen Steele — I’m a fan! — and he’s not addressing my needs by writing quickly enough, the bastard. And let’s say I want to sell this novel, so I crank it up on Lulu and anyone can buy it from me. And then Allen and Ace Books show up and say “Uh, don’t do that.” And I say, but it’s fanwork. Because I’m a fan. And it’s transformative, since my main character didn’t exist before and I have her and her friends on a part of Coyote you never visited. So it’s fair use. There you have it.
So, what am I? Am I a professional writer wantonly pissing on another professional writer’s copyrights? Or am I fan — because I am a fan of Allen Steele — writing fanwork who’s perfectly free to distribute and even profit from said work because it’s transformative and fair use? Does the fact I’m a professional writer matter toward my status as a fanworker? What if I weren’t a pro writer, but still wanted to sell my Coyote novel? What if I were a woman and not a man? What if I just wanted to post it on my site, no sales involved?
Point here: Drawing a line in the sand and saying “this is a fan” and “this is fanwork” is a proposition that I suspect would lead to some very interesting gaming of definitions, both by fans and by copyright holders. I’m not entirely sure the logical endpoint of creating a special IP class known as “fanwork” is going to work the way people think it will. Nor do I think creating legal definitions of “fan” and “fanwork” will end well.
So these are some of the challenges I think the OTW will have to deal with.
As for me, I find myself both sympathetic to and doubtful of the aims of the OTW as I understand them, partly because I have no little interest in my own intellectual property. On my end, as I’ve noted before, I think fanwork is both a compliment and a benefit for a working writer; if someone wants to write a story in the Old Man’s War universe, or with any of my characters, simply for their own amusement and the amusement of their friends, they can go right ahead and play in that sandbox. Have fun, and don’t show it to me. On the other hand, if they write an OMW story or another Harry Creek adventure and then shop it around or otherwise try to make money off it, I consider that something else entirely, and I won’t feel terribly bad if I were to sic Macmillin’s lawyers on those folks. To be blunt about it, if anyone’s making money off my universes, it’s going to be me, or at the very least, me too. I think that’s a reasonable distinction to make.
In a general sense, what I think eventually makes sense for everyone involved would be the promotion of something very much like what largely exists in the blog world: A freely applicable license for non-commercial derivative usage, either via Creative Commons or through some other process. This would build fandoms, give them legal protections and still let the right holders protect their direct economic interests. I suspect in the end this would be a more practical way of doing things for everyone.
That said, I’ll be watching OTW and seeing how it chooses to do its work and to achieve its goals. This could be very interesting.