A Perfect Storm of Transformative Works
Today has been an absolutely magnificent perfect storm of things that are partially about fannish creativity and legal issues. Basically, within a fifteen minute time frame of my life today, I did an analysis of copyright language, got a text that the ruling in the Google Books case was in and it was a massigve victory for Fair Use and transformative works in so many ways that can be analogized to fanfic, and *then* while I was sitting in my car tweeting about it, the Amazon delivery guy arrived with my copy of FIC: Why Fanfiction Is Taking Over the World (and if you haven't started Following FIC editor Anne Jamison on tumblr yet, today is the day to!).
I can't talk about the copyright analysis thing publicly, but I can talk about the two others!
First, the Google Books case, which will be analyzed in full on FYeahCopyright and the OTW's blog/tumblr shortly but here's my favorite bit:
Google Books does not supersede or supplant books because it is not a tool to be used to read books. Instead, it ... allows for "the creation of new information, new aesthetics, new insights and understandings.
Google Books is a tool that allows people to find books (another factor heavily weighted by the court) *and* then to create new aesthetics, insights and understandings. If that makes Google Books transformative and protected by fair use, then it's very hard to argue that writings or art that showcase those new aesthetics, insights and understandings are somehow not also transformative.
But here's the crazy random happenstance! First thing I did when FIC arrived was go to the chapter I wrote on the Harry Potter fandom, and while I was downloading the GB ruling on my desktop, I was reading through it was at this exact spot:
But in the last ten years, in cases utterly unrelated to fan creativity, US courts have expanded the definitions of "fair use" and transformative works.
The section on publishing also includes discussion of the transformative nature of fanfic, as does Francesca Coppa's section on the creation of the OTW:
Fanfiction is transformative ... and therefore not only legitimate but also legally protected by fair use, at least in the United States. Transformative works say new things, often in ways that wouldn't be accepatable or desirable in the marketplace.
The timing of this book, in conjunction with the Google Books ruling (and the Wikileaks post about the possible Copyright Act revisions discussed in the Trans-Pacific Pipeline trade agreement treaty draft) is more than (to quote Doctor Horrible) "a crazyrandom happenstance." It's all happening at the same time because all these issues are percolating and impacting what we do as fans.
Back in maybe 2005 I said something on LJ about how even though fans don't want to rock the boat (wrock the boat?) or get laws changed or be a Test Case, it's totally out of our control. There are big companies with big pockets who are willing to change the law in ways that will impact us (and I think it's vital that fans be part of the conversation or it'll be like the Sonny Bono Act all over again and what's good for creative people will be pushed under in favor of what's good for large corporations (and not the creative people who work for them). Check out this 2005 piece about YouTube for a fascinating flashback.
The Google Books case has changed the law, and it's good for all of us. So if someone tells you that all fanfic is illegal because you're using something created by someone else, tell them you're creating a new aesthetic and penning new insights and understandings. Maybe possibly with new snogs, commentary, memeing and remixing, too.
If you haven't ordered the book yet, you can click here and follow the link to get it from Amazon, and a portion of your purchase will go to support the OTW.