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Q&A with Professor Rebecca Tushnet

 

 

 Professor Tushnet is professor of law at Georgetown University as well as a writer of fan fiction. She is a founding member of the Organization for Transformative Works, an organization designed to support fans and fan fiction, and which argues that fan works are legitimate and transformative forms of creative expression. She agreed to take questions from Dear Author’s readers and answer as many as she can in a Q&A post.  The following are her answers.

 

Thanks for having me!  I’m happy to take follow-ups, but I’m in the middle of a busy teaching semester so may not be as fast as I’d ideally be.

From Ros:

Have there been any test cases where fanfiction authors have been sued for breach of copyright (or other related issues)? In your opinion, is the legality of fanfiction ever likely to be tested in court?

A: As far as I know, no fan author who wasn’t selling copies of her work has been sued for copyright infringement (the term we use in the US).  I am aware of various threatening letters, and of course receiving such a threat can be very frightening regardless of its legal basis.  So far, the result of such letters has either been that the fan author stops or that she responds that she’s making a fair use.


From Karen Scott:

How easy or hard would it be for published fan-fiction to have a similar referral and payment process to that of the music industry, where at present any artist who samples work by another artist gives a nod to the original creator, who is also remunerated for use of their work by the sampler?

A: First of all, that somewhat simplifies the ecology of sampling—there are a number of artists who rely on fair use (DJ Danger Mouse, Girl Talk, DJ Earworm, etc.), and even inside the “industry” there is a large legacy contingent of songs that used samples before the current practice of clearing everything released by a major label took hold.  A recent book, Creative License, gives a good overview of the complexity of what goes on in music.  For commercial releases, each license is individually negotiated and can cost from thousands to hundreds of thousands of dollars, if permission is available at all.  This system limps along, though complaints about delay, expense, and interference with artistic freedom are common, because big record labels and publishers are repeat players and can often get these deals done, given enough time.  (And it’s also significant that in many instances the artists themselves don’t get paid for the samples, though over time contracts have improved in that regard.)

The ecology of fan fiction is different.  It’s noncommercial, which means that there’s no revenue stream to help authors pay licensing fees. It’s vast and unorganized, with fan fiction being written about practically everything you can imagine and some things you probably can’t, which also means that it’s often not obvious who you’d ask for a license even if you did try.  Fan fiction regularly deals with issues of sexuality, and many copyright owners would shy away from that, meaning they wouldn’t want to grant licenses.  Apart from that, many fanwriters are young; some are even learning a second language with the help of a community that wants more stories, as Rebecca Black (no, not that one) has detailed, and they learn a lot from that.  Imposing a licensing infrastructure on these communities would destroy them.  It’s for this reason that courts applying copyright’s fair use doctrine have been clear that, if a use is otherwise fair, a copyright owner can’t control it just by saying that all it wants is a fee for the use.  In the same way, we could in theory have a regime in which people had to pay to review books and disclose their plot and character details, or in which they had to pay to quote short excerpts, but we don’t, and that’s a good thing.


From Carolyn Jewel:

I’ve been reading about the 50 Shades controversy and I’m confused. I’m not usually as muddy in my thoughts as I am with this so I apologize in advance for that. Jame’s fan fic, Masters of the Universe was transformed/rewritten/slightly edited or something, and became 50 Shades, successful eBook and now about to be traditionally published.

I look at MoTU as a draft work. The fact that there may be an 89% similarity between MoTU and 50 Shades is, to me, a big “so what?” Same author, and, as no one seems to dispute, the same project.

  1. 1. Should we be considering MoTu and 50 Shades as separate works for the purposes of determining the “originality” of 50 Shades. If so, why? And if so, what are the implications for an author who writes several drafts of a work before arriving at one that sells?

A: Let me say in advance that I haven’t read either version, so I can’t comment on these two specific works.  You’ve asked a really interesting theoretical question that doesn’t come up a lot in actual cases, so I can really only give you my take: it makes the most sense to figure out why we’re asking first.  What we probably want to know is “assuming [which incidentally is unclear to me] the fanwork was an unauthorized derivative work of Twilight, does that mean that 50 Shades is also an unauthorized derivative work of Twilight?”  And the answer there is: if the similarities between the fanwork and 50 Shades come from what the new author added that didn’t exist in Twilight, then no, 50 Shades wouldn’t be a derivative work of Twilight.  If, on the other hand, 50 Shades itself is substantially similar to Twilight, then it would be.  

There are circumstances where we’d likely treat the fanwork and 50 Shades as equivalent, though as always with copyright it’s complicated.  Usually, if an author writes several drafts, there will still only be one work that’s registered.  In the US, registration is a prerequisite for suing for infringement, though not for copyright protection itself (all works are now born copyrighted, and copyright is not a verb but a noun).  That means that a court is likely to look at how many registrations there are to figure out how many different “works” are involved. Even without this, in most cases a court will want to treat the drafts and the final work as the same.  Again it depends though: there was one case where a plaintiff claimed that the defendants copied his script in a draft script for their movie, even though the plaintiff agreed that the final version that was produced didn’t infringe his script.  The court held that the only work that mattered was the final version, so there was no infringement.

2. Basically, where and how and even, should you, draw a line between using a previously published book as the inspiration for a story and calling a work Fan Fic? Is it Fan Fic only if the author says so? Or only if someone else says so? Why can’t a story that starts that way transform into something new?

A: I don’t think there’s any answer to that at anything other than an unhelpful level of generality.  There are all kinds of inspiration—great works in any field inspire subsequent authors to write their own versions, whether it’s an epic with elves (I must put in a pitch for my personal favorite here, Jacqueline Carey’s duology The Sundering, an absolutely incredible response to Lord of the Rings) or the Regency romance.  At least for noncommercial fan fiction, my reaction is that it’s fan fiction if the author says it is.  But that’s a literary judgment rather than one based in law, which divides its categories differently—something that copies only the “ideas” and not the “expression” of one work is considered independent of that work; some fan fiction might copy only ideas.

3. Is there a copyright issue with 50 Shades (and arising from what elements of the work?) I have read Twilight and 50 Shades and though I think there are archetypical similarities, is that enough for there to be a problem?

A: With the caveat above: copyright law treats tropes, stock characters, and similar building blocks as “scenes a faire,” that is, ideas that are available to everyone to use.  Works that are similar only because of their similarities in archetypes wouldn’t be infringing.  A while back, I wrote a post about this issue with respect to two zombie adventures.

4. Violetta mentions an ethical dilemma arising from the publication of FanFic. Can you talk about that dilemma in the context of a community ethic vs legalities?

A: Obviously, I approach this from the legal side.  As a fan, I think there are important discussions to have about boundaries (it’s not polite to force fanworks on the unwilling, even if they’re your favorite authors), but I also think it’s important to live in a culture where people don’t have to ask permission to have passionate reactions—including passionate creative reactions—to what they read.  As an author, I’ve been misread and (in my opinion, which is of course entirely objective and not at all biased) unfairly criticized for mistakes I didn’t make, but that’s part of what it means to publish: people take your work into themselves, and you can’t control that. You can only pretend to.


I’d like to ask Professor Tushnet whether she believes that the financial profit earned off the P2P books will impact any legal decisions. It seemed in the Harry Potter Lexicon case that the court really never analyzed the issue of whether the derivative work diminished the market of the original work.

A: Twilight isn’t my fandom, so I’m working off second-hand descriptions of the fannish practices.  As long as the fanworks themselves are noncommercial, I think they have the same claim to fair use as any other fanworks.  The closest analogue that I can think of to a “filing off the serial numbers” issue, other than the case I mentioned above with the early draft v. the final version, are cases involving reverse engineering of software.  Reverse engineering involves making multiple, complete copies in order to figure out how software works, and then writing noninfringing software that’s compatible with or a replacement for the copied software.  The courts have agreed that this kind of “intermediate use,” though it’s for a commercial purpose and involves wholesale copying, is noninfringing, because the result is a commercial product that doesn’t itself infringe.  As a practical matter, too, I think about how people have always learned to become artists: they often start out by copying—copying paintings in the museum, copying a favorite writer’s style, producing a typical example in a genre—and then develop their own voices.  This process is more visible now, but that doesn’t make it any less a part of the human experience. 

In terms of fair use analysis, courts look at whether the challenged use interferes with a market that is reasonable, customary, or likely to be developed.  For the reasons mentioned above, I don’t think fan fiction fits into such a market.

Second, does she see the courts placing any kind of emphasis on one particular element in determining whether a derivative work is sufficiently transformative to overcome copyright protection.

A: Fair use is a multifactor test, taking into account things like whether the use is noncommercial, whether it’s transformative (adding new meaning or message or being used for a new purpose), whether it’s of a published work, whether it’s factual or fictional, how much was taken from the previous work, and what the effect on the market for the original is.  Each element can matter, depending on the circumstances, but new meaning or message is an important indicator of transformativeness.

Third, it seems to me that the works that are closest to the original canon are the most infringing whereas the works that are farthest from the OC are the least infringing; however in fan fiction, isn’t there criticism leveled at works from being too far from the OC.

A: This is where the difficulty of asking judges to be literary critics becomes apparent!  Copyright’s concerns are often quite different from those of people asking about literary worth or character continuity. I wouldn’t say that out-of-character behavior is a particularly good guide either way; sometimes you can make extremely critical and transformative points by having a character behave in an in-character way.  In the Wind Done Gone case, Alice Randall’s versions of Scarlett O’Hara and other white characters behaved similarly—at least in Randall’s opinion—to the way they did in Gone With the Wind, but with a different perspective those similar actions meant something quite different and showed the racial and gender biases of the original.

Fourth, fan fiction community has its own ethics and one of them is to not profit from publication. Are there any repercussions for violating the fan fiction ethos?

A: Commerciality is a factor in any fair use analysis, though there can be commercial fair uses like The Wind Done Gone.  Fans also often encourage each other to follow the governing fannish norms.

Fifth, Does the publication and huge success of 50 Shades likely mean more published authors will become less tolerant of fan fiction? How does she view 50 Shades impact on the ff community?

A: The only thing I’ve learned from watching copyright issues for the past 12 years online is that I don’t know what will happen next.  One thing that’s clear, though, is that fanworks help fandoms grow, sustain enthusiasm over time, and build long-term success, Harry Potter being one of the biggest examples of that.  Copyright owners who’ve learned to let a thousand flowers bloom have seen fans respond positively; meanwhile, the RIAA learned that suing your customers isn’t a great business model.  Likewise, people who read erotic romances are the most likely people to read more erotic romances.  And I have to admit to a fondness for the DIY ethos: for everyone who reads fan fiction and says, “Hey, I could do that!” we get more authors. And even if they’re not great, or not great at first, that’s where greatness eventually comes from.


From Maili:

I have a question or two for Prof. Tushnet:

Considering the fact that the fan fiction community is an international community and that not all original works are OEL (Original English Language), can one argue that fan works are legitimate and transformative forms of creative expression on *international* platform?

Basically, how does it all work? I mean, “fair use” doesn’t quite exist outside the U.S. and that moral rights don’t quite exist in the U.S. as well?

A: US fair use is definitely unusual, though it’s been adopted in Israel and several other countries are at least thinking about adopting it. Outside the US, the closest concept is generally known as “fair dealing.”  Fair dealing varies by country; it generally covers quotation and criticism, and some people have argued that at least highly transformative fictional works could fall within those categories.  Though I’m not an expert in the area, I’ve read some very interesting analysis of recent German case law, for example, suggesting that freedom of expression principles justify a broad interpretation of fair dealing in the case of critical reuses.  There just isn’t as much case law in the rest of the world, in part because US copyright owners are more apt to litigate than copyright owners in most other places.  As you mention below, Japanese publishers generally don’t interfere with unauthorized doujinshi, even hiring fan authors who’ve proven themselves in the doujinshi market—which is a commercial market!

For example, I have seen quite a few English fanfic writers/artists and readers saying that they prefer to devote themselves to the fandom of various Japanese comics/animated TV series/films because, according to them, there’s no law in Japan and the US against them creating and selling their fanfic and fanart works of non-English works, or that laws are different in Japan, which makes them feel somehow safer. Here’s the latest example, taken from the other DA thread: “I’ve never been comfortable doing fan works for Western media anyway. The laws and expectations are different than with Japanese fandoms.”

That mentality is quite common among English fan creators and members of Japanese/non-English fandoms. Most fan creators – from what I see so far – can’t read Japanese, so where do they get their information about Japan’s copyright laws and its current stance on fan creations? (Please don’t say Wikipedia because that would make me just cry. :D) How could one find reliable information if one is that concerned?

A: Our bibliography is largely US-based, though there is a fair amount written on Japan, such as the Salil Mehra article I linked above, this student piece, this one, and Larry Lessig’s discussion in Free Culture.

If a, say, French fan creator wants to write a fan story based on a Hong Kong action film, which country’s legal system should the French fan creator adhere to? Or is this where the “Internet is countryless” policy comes into play?

Like I say, how does it all work on the international scope?

A: This is a tough question not limited to copyright, and in fact courts and lawmakers have been unable to agree on an answer, so I can’t give a definitive one either.  In all cases, you are subject to the jurisdiction of the nation you’re in.  If you cause sufficient harm in another nation, then some countries will say you’re subject to being sued there (though they’ll still have to get their hands on you). As a practical matter, it almost never makes sense to sue an individual in a nation other than the one in which she lives, though if the person were very wealthy and had assets that were reachable in another country that would change the calculus.


From Jess:

What is the status of the fanfiction that Fifty Shades is based on? For instance, would James have solid ground to stand on if angry fanficcers decided to make it even more obvious that people can get the PDF fanfic version for free?

A: If the fanwork is fair use (or is noninfringing because it doesn’t copy enough from Twilight), then it has its own independent copyright and is just like any other work.  (Actually even if it’s infringing it could have an independent copyright, if there is distinguishable creativity separate from the infringing bits, but that’s an aside.)  Whether it’s okay to distribute the now-removed fanwork would itself be a question of fair use.


From Sunita:

1. Given that fan fiction is created within a community, and sometimes with considerable feedback from the community, do members who have materially assisted in the process have a claim if an author chooses to pull her fiction and publish it for profit? For example, can beta readers or others who provided assistance argue that they have provided added value to the product and deserve to be compensated?

A: The plight of the editor!  Pro editors, too, have long contributed huge amounts to the finished work; famous examples include Raymond Carver’s editor and Pound shaping Eliot.  From a purely legal perspective, courts have been extremely hostile to editors’ claims to have an interest in a finished work, preferring to find a single author with 100% control, though academics have long criticized this pattern.  In general, editors get only what they’ve agreed on with the author.  So whatever the ethics of the matter, the law is not interested in intervening.

2. Is there case law that points to any standard for how much fan fiction has to be transformed in order for it to be considered sufficiently separated from the source material to be non-infringing?

A: Again, this can only be answered in generalities.  Infringement requires substantial similarity; fair use can apply even if there is substantial similarity.  

Jane Litte is the founder of Dear Author, a lawyer, and a lover of pencil skirts. She spends her downtime reading romances and writing about them. Her TBR pile is much larger than the one shown in the picture and not as pretty. You can reach Jane by email at jane @ dearauthor dot com

23 Comments

  1. amouise
    Mar 21, 2012 @ 08:15:37

    Does gender play a role in how copyright infringement is viewed by the public? the courts?

    The reason I ask is because when I think of Alex Haley’s Roots or Ian McEwan’s Atonement vs. Cassie Edwards and the Harvard student’s name I can’t currently recall, I see a very real difference on how the authors were treated. The men’s works seem transformative while the women were well, not kicked and bashed and basically attacked.

    Then when you get to ‘real’ full-on wholesale copying like the Nora Roberts copyright case, it just kind of gets excused with the whole well all the romances are the same.

    I’m wondering if 50 shades isn’t another example of this bias. If this book had been written by a male with a focus on male sexuality would we even be having this conversation about fair use, infringement or would this work simply be considered transformative?

  2. amouise
    Mar 21, 2012 @ 08:22:20

    Sorry this sentence should have read:

    Online (in the public sphere) The men’s works seem to be viewed as transformative while the women were well, not kicked and bashed and basically attacked.

  3. Carolyn Jewel
    Mar 21, 2012 @ 09:03:18

    Thank you, Professor Tushnet, for your answers. Very interesting.

  4. Anne Jamison
    Mar 21, 2012 @ 09:55:13

    Thank you so much for this work! I mean both the site and Prof. Tushnet. Your work was tremendously helpful to me when I was preparing (and teaching) my fan fiction unit. I too was looking at fanwork from a literary critical/theoretical standpoint. What I think needs to be emphasized, though, is how our notions of authorial control, originality, and exclusivity arise in tandem with copyright law–causal relations are hard to prove. But the legal and literary history do intertwine to a great extent, and our notions of “author” and “authority” are *not* transhistorical. They are quite new in historical terms.

  5. greenjasminetea
    Mar 21, 2012 @ 10:05:17

    This series has been an eye-opener and I’m reading a lot about how fanfiction is justified. I’ve been a participant of fanfiction both as reader and writer.

    But there is a sense that the fanfiction/fanworks are NOT non-commercial. The 50 Shades and the Pull-to-Publish business model appears to have pretty put the last nail into that coffin.

    So my question is: How can the creator/author of the original source protect his or her property?

  6. greenjasminetea
    Mar 21, 2012 @ 10:06:56

    Sorry, missed a word. That sentence should read as “The 50 Shades and the Pull-to-Publish business model appears to have pretty MUCH put the last nail into that coffin.”

  7. Edward
    Mar 21, 2012 @ 10:23:10

    Jane, the Larry Lessig’s discussion hyperlink is broken.

  8. Jane
    Mar 21, 2012 @ 11:22:22

    @Edward – thanks, fixed.

  9. Edward
    Mar 21, 2012 @ 13:57:42

    Thanks to Maili for asking about doujinshi and thanks to Professor Rebecca Tushnet for answering them *and* backing them up with some links. I had a hard time forming a coherent opinion on why I hardly found P2p fanfiction unethical and trying to connect this with my acceptance and adoration for doujinshi. I love the fact that Professor Rebecca Tushnet went further into the international view of copyright and fanfiction instead of just limiting it to an American perspective.

  10. Maili
    Mar 22, 2012 @ 11:28:14

    Thank you, Professor Tushnet, for answering my questions. Much appreciated!

  11. Rebecca Tushnet
    Mar 22, 2012 @ 15:08:07

    @amouise: Hi amouise! I wrote an entire article about the role gender plays in fair use analysis; I think you’re absolutely right. Gendered assumptions affect a lot of the issues–what “counts” as transformative, what even “counts” as worthwhile, what “counts” as creative effort, whether it’s “polite” to write–as said in another context, well-behaved women rarely make history.

  12. Rebecca Tushnet
    Mar 22, 2012 @ 15:16:54

    @greenjasminetea: Hi there–I think it’s important to recognize that fandom, like most human endeavors, is big. Fanfiction.net, Livejournal, DeviantArt, and the countless other places noncommercial fanworks are to be found aren’t disappearing or even diminishing. Nor will they, I suspect, as long as people still like to tell stories to each other. 50 Shades and other works by people with a background in Twilight fandom don’t make noncommercial fanworks into commercial productions, any more than Roy Lichtenstein’s lithographs being sold for profit make all art–including the pictures my daughter draws me at school–commercial.

    Quite separately, I’ve yet to see reasons to think that the stories that have been commercialized use anything protectable from Twilight, as opposed to using tropes that are free for every writer to use. Professional authors can protect their works by charging money for them–but not by telling other people that they can’t use the same themes and stock characters.

  13. Ann Somerville
    Mar 22, 2012 @ 18:08:57

    Professor Tushnet, may I ask about the import of the disclaimers that many fans use, as I did, on their fanfiction – to the effect that they do not own the characters (and often acknowledging those people they believe did.)

    How would that affect any defense or suit where someone took a work with that disclaimer, changed the names (and little else), and published it as a pro work? Has the author already removed any defense that the work is theirs and no one’s else’s creation?

  14. Jane
    Mar 22, 2012 @ 18:10:48

    Maybe a corollary of Ann’s question is do fan fiction authors or those who post the disclaim abandon copyright to their fan fiction?

  15. Rebecca Tushnet
    Mar 22, 2012 @ 19:01:18

    @Ann Somerville: I don’t think disclaimers are particularly relevant to that situation, and it doesn’t really matter that the fanwork is based on some other work. Here’s an example Congress considered with the current copyright act: suppose you have a poetry anthology. It turns out that one of the poems is infringing. Does that mean that the copyright in the anthology as a whole is invalid? Congress was clear that the answer ws no: as long as the anthology also contains creative content provided by the editor/compiler, the copyright is valid against a third party. While matters are more complicated if the original work is intertwined with the entire fanwork, a third party is unlikely to be able to say “the whole thing wasn’t yours” if what the third party copied was what the fan author had added–that is, her own take on the characters or version of the story. And that’s all assuming that the fan’s story wasn’t a fair use–if it was, as I think noncommercial fan fiction is, its copyright stands on its own.

    Jane, a disclaimer generally wouldn’t abandon copyright, which turns out to be a bit hard to do. Many fans, though, do encourage other people to remix their stories, make art inspired by their stories, record their stories as “podfic,” and so on; that’s one of the great community aspects of fandom.

  16. Kaetrin
    Mar 22, 2012 @ 19:12:03

    Thx for this Professor Tushnet. It’s a fascinating discussion. :)

    Could someone tell me what Roots and Atonement were transformative of (from?)? Thx

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  19. Shiv
    Mar 26, 2012 @ 03:08:25

    The Harry Potter case did look at whether the market was affected by the lexicon because one of the issues explicitly discussed was that JKR was contemplating bringing out her own lexicon and whether the market for that was diminished as a result.

  20. Shiv
    Mar 26, 2012 @ 03:29:28

    Also, I did not think that following the adoption of the Berne Convention that it was necessary to either register or have a copyright symbol on published works to assert copyright, and that failure to do either might sound in damages recoverable but not prevent action for breach.

  21. Rebecca Tushnet
    Mar 26, 2012 @ 07:12:28

    @Shiv: As I said, “In the US, registration is a prerequisite for suing for infringement, though not for copyright protection itself.” It’s also true that a foreign work (a work by a non-US national first published outside the US) need not be registered, though the limits on damages still apply since Berne doesn’t require the availability of statutory damages. Notice, too, is not required; this is what it means to say that all works are “born” copyrighted.

    The Lexicon case, like all fair uses, considered effect on the market. The court specifically held that the copyright owner can’t control the market for reference works just because she wants to issue a reference work of her own; the specific problem was that the initial print version of the Lexicon contained too many direct quotes and near paraphrases.

  22. Jane
    Mar 26, 2012 @ 08:21:55

    @Rebecca Tushnet and @Shiv – my reading of the Lexicon case was a bit different. I felt like the court gave very little importance to the market issue. It seemed to say that if the originator of the work simply said that she might someday want to write in that area (in this case Rowling said she had thought about doing a reference work but also indicated that it was unlikely due to the time it would take) then the market factor swung in the originator’s direction. I understand that the 2nd Circuit seems generally disposed toward the creator but my takeaway was that the marketability/commercial factor is weighted so heavily in favor of the original creator as be a very small factor in determining fair use.

  23. Rebecca Tushnet
    Mar 26, 2012 @ 08:50:22

    @Jane: One thing that happened in the Lexicon case was that the court distinguished two copyright rights: reproduction and derivative works. The court held that, in general, a reference work doesn’t violate the derivative works right of the author of a work of fiction. However, a reference work that copies too much of the text of the original work can violate the reproduction right, which is what the court found had happened with the Lexicon.

    In all cases, the fair use market analysis should consider only traditional, reasonable, or likely to be developed markets; the Second Circuit has explicitly said that just because the copyright owner wants to get paid for a use doesn’t make the use fall within that kind of a market. In particular, analytic/critical uses are not part of the copyright owner’s legitimate market. It is certainly true that a finding of transformativeness (new meaning or message) is often important in convincing a court that a use is outside the copyright owner’s ordinary market, though the key Supreme Court case of Universal v. Sony, from 1984, held that private, noncommercial VCR copies for time-shifting purposes were fair use even though they didn’t transform the original.

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