The legal status of fanfic, aesthetic perversion and a new moral imperative

[indri]

Someone on a mailing list linked to this site, which has an interesting list of articles on the legal status of fanfiction in the US. I particulalry enjoyed Copy Catfight, which looks at the broader context of copyright law, including fannish productions.

The upshot seems to be that (i) the legality or otherwise of fanfic has never been tested in court, and (ii) if it were, it would quite possibly be covered under "fair use" in the US at least, as the works are non-profit, possibly are "transformative" or (sometimes) parodic in nature and don't lead to a loss of income for the holder of the original copyright. I take this to mean that, in the US at least, nobody knows whether fanfic is illegal and that it might vary on a case-by-case basis.

I'm also much amused by some of the discussion. Henry Jenkins is frequently quoted, to the point where it almost seems that no-one else in academia has written on fanfiction (which I know isn't true).

From Legal Fictions:
Henry Jenkins notes, "What may make [fan activity] particularly damning is that fans cannot as a group be dismissed as intellectually inferior; they often are highly educated, articulate people who came from the middle classes .... What cannot be dismissed as ignorance must be read as aesthetic perversion."

I need a mug now that reads "Aesthetic pervert".

Fandom is extraordinarily open to marginalized groups, including women, people of color, gays and lesbians, pink-collar workers, and people who are members of several of these groups.

My experience in sf fandom has been that non-white people are seriously under-represented. Participation rates for women vary enormously by geography, decade and group: here in Adelaide it's pretty male-dominated but my (possibly atypical) experience of sf Britfen suggested that the scene there is run by women. In fanfiction though, women invariably out-number men by a large margin. (When ludditerobot first friended me and mentioned his wife, I initially thought that he, like all the other people on my FList with wives, was a woman; I'm not sure when or how I realised this wasn't the case.) Also in fanfiction circles, I've seen suggestions that upwards of 35% of fans are lesbian or bi and a brief review of my FList does nothing to dissuade me of this.

fan fiction is also political in the sense that it expresses utopian and oppositional attitudes and is particularly important for women and other marginalized groups who have trouble expressing themselves in the dominant culture

When most creative output is controlled by large corporations, freedom to modify and elaborate on existing characters is necessary to preserve a participatory element in popular culture.

See? Writing fanfiction is a moral imperative! In fact, I should go and write some now.

Comments

[onetwomany.livejournal.com]

The upshot seems to be that (i) the legality or otherwise of fanfic has never been tested in court, and (ii) if it were, it would quite possibly be covered under "fair use" in the US at least, as the works are non-profit, possibly are "transformative" or (sometimes) parodic in nature and don't lead to a loss of income for the holder of the original copyright. I take this to mean that, in the US at least, nobody knows whether fanfic is illegal and that it might vary on a case-by-case basis.

My frank opinion, formed after much research and practical experience as a lawyer? There are lots of high fluttin' arguments about why fanfiction is fair use or transformative or whatever, but your case would have to wind its way up to the Supreme Court before anyone would dare start making decisions based on such abstract sociological principles. That's fine if you have (a) heaps of money or (b) a couple of Harvard professors on your side. For the average person though? Forget it. Under the strict letter of the Copyright Act and the law as it stands, you're a gonner.

That said, though, I doubt many companies want to take the *risk* that you'll put up a defence, hold out, and maybe actually get a decision in your favour. Better to keep things avgue and rely on the uncertainty. Besides, it's greta publicity, and only the very stupid companies (*cough*paramount*cough*) try and stop it.

at the very least an icon

[klytaimnestra.livejournal.com]

I'm going to put an "aesthetic prevert" (sic) mug up on my cafepress shop! Also make an icon.

Must go write some fanfic now too. I hadn't realised it was a moral imperative, but you've convinced me. And much more fun than marking Latin quizzes ...

[scribll.livejournal.com]

I need a mug now that reads "Aesthetic pervert".

I want a bumper sticker that says this. And a T-shirt.

I do find it curious that fanfiction writers/readers are mostly women. I have read some fantastic fanfiction written by men (and also some screamingly bad), but still there are very few. I haven't come accross any in the Jossverse, at least that I know of. I once beta'd for someone in the Farscape fandom and made a terrible faux pas by assuming the author was female.