So what's it going to take?

Well, I thought I would take a look at parodies, but then I found an article by Jessica Litman on the right of fan creations, titled "Creative Reading." Litman provides several thoughtful insights into the issue of copyright and fan creations, but I found myself wanting more exposition. At the outset Litman points out that fan fiction has been responsible for adding commercial and renewed value to existing works, like Star Trek and Star Wars. As I suggested in my previous post, criterion 4 of fair use is surely satisfied here (note: “effect on the marketplace” is often weighted heavier than the other criteria). Last Sunday I analyzed the argument of fair use for fan fiction and suggested that fair use might not be up to the task of supporting fan fiction works. Litman also questions whether fair use is sufficient to support the activities of fan creations since “in its current form, it cannot possibly answer the legitimate claims of readers, listeners, and viewers of other sorts. Fair use is much too busy protecting “The Wind Done Gone” and trying to figure out what to do with Google Book Search to be able to support the copyright interests of millions of everyday readers, listeners, and viewers” (177).

What are we to make of Litman’s statement? What exactly is she saying about fair use? Firstly, it’s a numbers game – and it seems the courts have more important and noteworthy cases to conser than taking up the case of fanfic authors as a whole, but that doesn’t mean that the copyright issues are resolved. Secondly, unprecedented copyright expansion in the last few decades has significantly eroded people’s perceptions of their rights (180). She identifies the conclusive language of section 106 of the Copyright Law that pretty much sets out to prohibit any use outside of the home, which we assume means personal use – but the advent of the internet and other digital technologies has complicated our understandings of “personal use.”

So if fair use isn’t the most appropriate limitation on exclusive rights, is there any other right of use that supports the creation of fan fiction without falling into a legal quagmire? Litman suggests that in this time of unprecedented copyright expansion, the argument regularly employed in relation to fandom is that of “implied license” (178). This implicit grant of rights is what Litman calls “fannish norms” (178), and is most often granted because of its positive effect on the industries’ bottom line. Unlike a licensing agreement that sets out the specific terms of the agreement between the specified parties, there is no formal contract with the implied license and any terms of use would need to be made publicly and openly. For example, fanfiction.net provides a list of authors who have asked that their works not be the subject of any fan fiction, but they could very well include particular terms of use instead of completely prohibiting its use. The list of writers that do not allow fan fiction includes:

• Anne Rice
• Archie comics
• Dennis L. McKiernan
• Irene Radford
• J.R. Ward
• Laurell K. Hamilton
• Nora Roberts/J.D. Robb
• P.N. Elrod
• Raymond Feist
• Robin Hobb
• Robin McKinley
• Terry Goodkind

However for Litman, “implied license” is also an insufficient mechanism to secure rights for fan creators. Litman questions the copyright owner-centric focus of current practice, and suggests that readers, listeners, and viewers should take a less peripheral position in the copyRIGHT story (177, 179). In support of this position, she points out that fans often contribute to the original work created by an author; however, she notes that these contributions are difficult if impossible to quantify. Unfortunately, Litman doesn’t offer much evidence in support of this assertion, but it is provocative and interesting to consider. What Litman accomplishes here is that she effectively brings into focus the interplay between author and the world around them – no one creates in a vacuum, and even though often a solitary act – creation is inevitably a social process that is predicated on interaction.

Furthermore, she cites that reading is itself a creative act and is, in large part, a requirement of the reader when interacting with a text. She believes this process or relationship is given short shrift in copyright negotiation, as well as in the scholarly literature (180). She acknowledges that there does need to be limits on right of use, but that our current arguments do not consider the reader, viewer, and listener. She argues that current arguments for user rights, e.g., big law is bad law or copyright is about balance, have not been effective (182). Instead of relying on these tired arguments, she suggests we need to rethink how we conceptualize copyright law and to consider a larger perspective on creativity and creation. This is clearly evidenced in her conclusion when she states, “the Progress of Science and the integrity of copyright law are likely to be furthered by encouraging readers, listeners, and viewers to experience works with imagination and creativity” (183).

Litman’s article identifies and assesses key legal issues and considerations surrounding the creation of fan fiction. She provides an articulate and provocative argument in favor of more robust user rights, while at the same time protecting copyright holders. She acknowledges that as technology continues to evolve and create and support expectations for user participation, interaction, dissemination, we would be wise to rely less on codified and stringent laws and more on mutual respect.