On Fandom and Ownership
Some discussion on fandom and ownership.
Note: this is a personal essay (i.e., there will be no footnotes). It arose out of the Fandom and Ownership panel at Escapade, where I found myself somewhat startlingly in the minority on a couple of issues. When I wrote up my panel notes, rivkat asked me to expand on these issues a bit; and what I've ended up with is fairly sweeping, based on my experiences in fandom over the last (on-and-off) sixteen years.
Comments are fine--I love to talk meta--but I'd prefer not to start an argument about the baseline ethics of fan creativity: I'm a ficwriter myself, and an appreciate vid viewer. I believe that transformative fair use of corporate products should be protected and allowed to flourish. But I also think that having no broadly-accepted limitations on what we allow ourselves to do may come back to bite us in the end.
I also want to point out that some subcommunities within fandom may (and often do) have different standards than others. Fandom is large: we contain multitudes, and we don't always agree. But this doesn't mean there aren't some commonalities worth examining.
*
Introduction
Premise: that fan respect for the legal or equitable interests of either the producers of content or other fans is situational and, generally, self-serving. What it is not, is consistent.
I'm going to start with a brief overview of the legal situation (since this isn't a legal essay there won't be citations or caselaw); necessarily brief, as there are plenty of people on LJ with far more expertise in this area than me. I'll discuss fan attitudes towards the rights of producers with regards to distribution, profit, and derivative works, and then compare those with fan atittudes towards the rights of other fans over their own products.
Finally, for the purposes of this essay, I'm primarily a descriptivist, not a prescriptivist. It's not that I don't have an opinion, but I'm something of a pragmatist and I don't know how to enforce ethical standards outside small and relatively isolated communities. Not to mention the difficulty in getting fans to agree on what those standards should be.
Legal stuff
One of the things that frustrates me every time I have this discussion is that there is a common failure to differentiate legal standards from community standards or accepted moral norms.
American intellectual property law says that the producers/creators of a text (for this purpose a show, a book, a movie, a character) retain the exclusive right to distribute, profit from, and creative derivative works associated with, that text. (Yes, some exceptions apply.)
A definition: Equity is a principle that a court will sometimes draw upon when the law itself does not recognize an interest, but fairness would. I'm going to use the term equity, or equitable ownership, in discussing a fan's rights in her own creative but derivative products. Fannish equity could include most of the same rights that a producer's legal rights do: the right to payment (i.e. credit) for the work, the exclusive right to control distribution, the exclusive right to create derivative works. It's a right that recognizes the investment the fan has made in the work, but one that (probably) can't be enforced in a court of law. [Note for lawyers: yes, this is not precisely the definition of equity used in legal discourse; but I couldn't come up with an alternative that worked as well.]
What the law (as opposed to equity) says about fannish property rights is, well, undefined. Even the things we generally think of as absolutes may not be. Most fans understand that we don't have the right to make money off fannish activity. Well, yes--and no. I certainly don't have the right to sell hard copies of This Is Not Wartime for $25.99, because the characters and some of the situations belong to MGM/Gekko. What if I drew a lovely picture of Jack and Sam (and/or Daniel) having sex? People do it all the damn time, but the legal underpinnings of it are at best suspect.
Just because the cops have never shut down the dealers' room at Escapade doesn't mean all the activity there is entirely legal. But everyone picks their battles, and fan sales of material with questionable copyright status are relatively small compared to, say, Chinese bootlegged dvds. So fans get away with it.
Anyway, every time you start talking about ownership in fandom, the legal situation is raised, people start throwing around (generally inaccurate) definitions of copyright and trademark, and everyone climbs on board the good ship Fair Use.
The fact is that what the law allows isn't clear; and what is actually enforced is unpredictable. Just because the Jim Henson Company and Creation Entertainment think it's a great idea to have a vid contest at the official Farscape convention every year doesn't make it legal (both RIAA and ASCAP are likely to have an opinion on that). You can have a fan produce the same derivative work in two separate fandoms-- and in one would receive a C&D letter and in the other would get a prize.
No wonder we're all so confused.
Community Standards
So in a world where the legal situation is so uncertain, of course the community standards are going to be equally mutable. They change with context, over time, and with advances in technology. And, I should note, these community standards may vary (and usually do) from the choices made by individual fans. In other words, one fan's ethical choices may differ widely from the general standards that apply within fandom at large, or the community/ies she inhabits.
There are two levels here: the way fans think of the rights of the creators of the source text (I'm going to call them producers, and include actors, writers, production companies, etc); and the way fans think of the rights of other fans. We treat them differently; whether this distinction is logically sustainable is another question.
Legal standards, as uncertain as they are, seem to me to be mostly applied to producers. In fact, my impression is that it is commonly understood that fans have no legal rights at all in either the source product or their derivative works. Now, this isn't necessarily true (here is the mandatory reference to Rebecca Tushnet's article on legal rights in derivative works): but it's accepted as gospel pretty much everywhere in fandom. Except when it's not--and I'll get back to that later.
Fans and Producers
Producers' legal rights are acknowledged without, generally, being respected. The rights of the copyright holder include the right to control distribution, to make money off a product, and to create works deriving from it, among others. These are undisputed, whether or not we agree that it is proper and morally correct to have such rights, and to exercise them.
But a fan's exercise of respect for producers' rights varies depending on the right in question, the identity of the producer, the history of the community and the interaction between the fans and the producers (if any), the risk of penalty, and what the fan stands to gain.
Case in point: the SaveFarscape campaign refused to condone any violation of the Jim Henson Company's rights to make money or control distribution of its product (i.e., no downloading episodes, no selling of buttons with characters on them to raise money for the campaign). On the other hand, SFS freely engaged in creation of derivative artwork for websites--although eventually SFS obtained legal permission from JHC to pay for ads using authorized images from the show. (This was a first in fandom, so far as I can tell.) What the fans stood to gain from supporting JHC was clear, and the producers historically had a fairly close and friendly relationship with the fan community. Additionally, SFS had sufficient status to enforce this position: they were big, they had the contacts at JHC, and trying to be clean in the copyright realm gave them a certain amount of moral authority. Some other fan group trying to enforce that code might not have been nearly as successful.
Other fan campaigns have gone the other way: the broad distribution of the Global Frequency pilot was associated in part with an attempt to show the producers that there was an audience for the show. It also helped that the executive producer didn't seem to mind, although he was careful not to say "go forth and torrent."
But these are situation-dependent circumstances, and it's entirely possible (and indeed likely) that some Farscape fans associated with the campaign were uploading episodes to the filesharing networks, and that some Global Frequency fans thought the torrenting was a bad idea, and would work against the desired effect.
Fan perspectives on the producer's exclusive right to create derivative works (as opposed to make money and distribute) are less varied, in part because it's the creative right that is so close to the heart of the fannish experience. It's here that the fan community standard most clearly diverges from the legal standard.
There is an argument to be made that fair use applies to the creation of fanfic, fanvids, and fanart. This essay is not really about that argument, but I acknowledge that it exists. My point is that while some fans rely on that argument to justify their creation of derivative works, many don't bother.
In effect, the community standard of fandom is that the legal right of the producers to control derivative works is irrelevant. On an individual basis, fan positions vary: some fan writers, for instance, only write fic based on television or movie sources rather than compete directly with a written source. But it generally comes down to a question of whether the producer has spoken on the issue--so Anne McCaffrey's Pern series has fic written about the universe but not the characters, while Lois McMaster Bujold (ex-ficwriter herself) is apparently quite cheerful about the prospect of fanfiction about Miles and Ivan (while careful not to embarrass her publisher). Lestat fic, if it's still written, on the other hand, has gone entirely underground because Anne Rice fiercely resents anyone else writing in her world.
This is a realpolitick kind of response: but it's neither logically nor ethically consistent, particularly if the producers of the source are bound by their own legal obligations not to speak on the matter. Why should Anne Rice get the respect and CS Lewis not? And very little of this has to do with who actually has the legal right: fans are far more respectful of the producers' equitable interests than their legal interests. CS Lewis' wishes are irrelevant because he is dead, even though the Lewis estate retains his rights. Tim Minear doesn't own Angel, any more than David Kemper owns Farscape; but if Minear or Kemper asked the fans to stop writing fic? Many of them would.
But some wouldn't. Because what the fan gains from the activity means more to her and her community than would be lost by knowing that she was acting in opposition to the producers' wishes. Particularly if there were no indication that legal action were likely to be taken.
I can't, frankly, come up with a way to describe the fannish response to producers' legal rights, except to say that it depends, in the end, on what the fan wants. This perpetual argument about the ethics of fan creativity is the ultimate in result-oriented reasoning. The average fan will make whatever argument is necessary to justify her continued engagement in her hobby--and I do not exclude myself from this conclusion.
The distinctions drawn between FPF and RPF, between downloading UK broadcasts and American ones, between movies and television shows, between book-based and media-based fandoms, between living and dead authors, between single-author and multi-author sources: it all comes down to ways to justify getting what we want. And while today I try not to download anything I can rent legally or watch on broadcast or cable in the US, if in three months I get hooked on Rome, I'm sure I'll find a rationale to justify downloading that without paying for HBO.
Note, please: I'm not saying that nobody in fandom has any ethical principles. I am saying that, when considered as a whole (inasmuch as fandom can be considered as a whole, since it's so entirely decentralized), there is no consistency in any of our arguments. What is considered good behavior in one fannish community is not in another, and for no logical reason that can be discerned.
Fans and Fan Ownership--Distribution and Profit
As I said above, it is commonly understood that fans have no legal rights at all in their derivative works based on copyrighted sources. Except that this, also, is honored in the breach; and for the same reasons.
Generally, anyone who questions that premise, that fans have no legal right to their product, is subject to the fiercest of social penalties. Fans who try to sell their fic, in particular, are held up to ridicule. Except when they're not.
Because for every CousinJean, who was drummed out of LJ-based fandom for wanting to get paid to stay home and write her fic, there's a CousinMaryJane, who sells PDF downloads of her zines for $8 each. And someone is buying all that derivative art for sale on websites and in dealers' rooms. If we know we have no legal right to something, why are we willing to pay for it?
There is a market for fan creations, and our willingness to claim that fans have no right to benefit financially from fan creativity ends at the point where we can't get our fix without spending money. Fic used to be sold--the only reason money doesn't change hands now is because the internet allows it to be distributed for free. (Sure, it was supposed to be sold at cost, which was an distinction the law wouldn't recognize: the question is money changing hands, not the percentage of profit.)
One of my betas on this essay pointed out that there is and continues to be something of an underground market for fan creativity, and this market can be either straight payment: Fan the Vote involved the exchange of fic for political donations, the Vividcon convention regularly has a "Vidder auction" where a vidder prepares a vid in exchange for a donation to a scholarship fund for the convention, fanfic has been written in exchange for charitable donations; or barter: people regularly trade drabbles for icons or for paid-LJ time. Fandom is supposed to be outside the market economy; but the truth is that the medium of exchange is all that's different.
The straight cash market for fan creativity has some justification, of course. Fan art is a lot harder to transmit online, especially if you want something pretty for your bedroom wall. Fanvids are prettier, higher quality, and more convenient on dvd. Both of those cost money to produce and ship, and so we're willing to pay for them.
Now, nobody claims that this exchange of money for goods gives fans a legally-protected right to make these exchanges. In other words, if I sold a copy of "Scooby Road" to someone, Luminosity couldn't sue me for lost profits without getting tossed out of court (because she has no legally recognized right to profit from Buffy the Vampire Slayer). But if I were to do that, I would be refusing to recognize her equitable right of ownership in the vid set.
The reasons that vidders and writers often say they want control of distribution of their work generally have to do with legal liability. For vidders, this is in fact an issue of real concern. Working with the source text in the way they do, and working with music files in the current legal environment, leaves them open to infringement claims in a more obvious way than ficwriters are. So keeping a close eye on where their work is, password-protecting the websites, and forbidding unapproved duplication, is a reasonable means of protecting themselves.
But it's also an assertion of ownership over the product. "I made this," says the vidder. "I get to say where it goes." And many ficwriters do the same: does anyone else remember the "Archive:" line on alt.tv.x-files.creative posts? "Gossamer fine; anyone else, please ask."
Except things are beginning to change--or already have, depending on where you are. Control over distribution feels, to me, like it's becoming less of an issue in fannish circles. Many vidders don't password-protect their sites, and cheerfully upload their vids at centralized archives. Vids are far more transferrable now than they used to be, back in the VCR/VHS days. You can make infinite perfect copies of a digital file, after all. So once one copy has been downloaded from a vidder's website, her actual ability to control where it goes is lost. And that's how you end up with Buffy vids uploaded to Google Video, or YouTube. The mechanisms for control are lost; and, as a result, the community is beginning to stop respecting that control.
I don't recall the last time I saw an Archive header on a fic post; do you? I've seen people upload other people's fic to archives because they didn't want the stories to be lost. I've seen plenty of people share stories in email because the original writer has disappeared and the stories had disappeared off the web. Regardless of what the original writer wanted, the fans' interest in their fix is of more importance than any mere 20th-century interest on the part of the writer in controlling where their stories went.
The fact is that in a digital age, in order to share the product of your creativity, you have to give away more than just access: you have to give away physical ownership. And that throws all the old precepts into question.
And that brings us, finally, to the question of derivative uses. Which in turn all ties back to credit. And credit goes back to status, and the whole thing comes full circle.
Fans and Fan Derivative Creativity
I think the same factors affecting the change in attitudes about distribution of fannish works are also affecting attitudes about derivative creations. Plus a few other issues, frankly. In the Escapade panel that inspired this whole essay, one of the moderators noted that fans now seem to feel less ownership over their own creations than they once did. On the other hand, there were a number of stories told in the panel about fans in the 1970s writing stories based on other stories, without disclaiming them or asking permission. A poll of the attendees of the panel indicated that only 2 or 3 people in the room (of about 20-30 total) felt proprietary about their fan creative products. So it looks like things are changing, or have always been changing; it's a little unclear.
That said, from my perspective, the fannish attitude about creating works based on other fan creativity seems to depend, like the attitude towards producers, on the community in question, the relationship between the parties, and what the second fan stands to gain. If there is no relationship between the two fans, or the second fan stands to gain a great deal from the derivative work, then the likelihood is greater that whatever the wishes of the first fan, they would be ignored.
Community standards also come into play: the rules of engagement, if you will. For instance, if troyswann wrote a story and posted it, and I didn't like the characterization of Daniel Jackson, and I wrote another version of the story and posted that, well. There's a good chance people would look at me funny, particularly if I didn't talk to her about it first. (Although troyswann would be totally cool with it, in actuality.) However in the pegasus_b community, that's pretty much what I did. People were writing a Daniel that I didn't find all that interesting, based on the backstory he was given. So I sat down and wrote a different Daniel into the universe, one with a different history and different personality traits. And nobody looked at me funny, because the entire point of Pegasus B is that anyone can riff on anyone else's work. Anyone can write a sequel or a parody or a backstory or an AU of any other story posted to the community. Those are the ground rules, and if you're not comfortable with having other people play with your toys, you don't get in the sandbox. These conditions would also be assumed to apply to, say, the various Remix challenges: no one signs up without agreeing to the terms of the challenge.
My personal experience with derivative stories has been when people have approached me to ask if they could spin off my story. And my response has always depended on what they wanted to do with the story, and how much I trusted them. I'm far more comfortable with friends taking an idea and running with it (which is how I ended up with three other people writing Life During Wartime) than I am with complete strangers.
But what I found particularly interesting during the panel was the impression I got that not only am I in the minority with my discomfort about having strangers rewrite one of my stories in some way (either by rewriting or by writing a sequel), but that I'm wrong to have this feeling. Not only do I have no legal right (which I am aware of), I have no equitable right, either. Apparently I am out of step with the fannish zeitgeist. Ownership and territoriality over one's own words/ideas/characters is (a) not something fans are allowed to have because it's all borrowed anyway; and (b) not something that can be enforced, anyway, so why worry about it?
This was something of a stumper, as was the implication that any concerns I had about having material be borrowed and reworked were entirely my own issue. I felt I was being told that the default setting was: borrow if you like. If the first writer didn't express an opinion about spinoff/remixes, you can assume it's allowed. Which is at the least relatively consistent with the fan position regarding the producers of the original text. Hoorah for consistency!
[My personal response to borrowing from fans versus borrowing from producers--I ask the fans but not the producers--has to do with who is a member of the community and who isn't; but see above re: result-oriented reasoning. I cannot trust my own logic, really.]
Now, it should be noted that the issue of derivation needs to be kept distinct from plagiarism. Taking a story, or part of a story, or a couple paragraphs of a story, and putting them out under your own name is plagiarism; just as taking a sequence of clips from someone else's vid and putting them in yours would be. Because fans place a lot of importance on credit (it's vital to status accumulation), falsely taking credit is one of the worst violations of fannish community standards. If you don't at the very least disclaim ownership of those other parts, you will be held accountable, and very likely drummed out of fandom, or at least publicly shamed.
But even plagiarism cases have shades of grey. What if a few lines of dialogue in your story are from an episode of the television show, and you don't disclaim them specifically? Is it plagiarism if the average fan of the show would recognize the text as belonging to Joss Whedon? What if it's a crossover with an obscure fandom and you use dialogue from the obscure fandom, so most of your readers don't know the source? The community response to these sorts of questions--varies. Again.
One of the points that was made in the Escapade Panel was that the community response to accusations of plagiarism often depends upon who knows about the plagiarism (or unauthorized borrowing), and what their position is in the fandom. Status absolutely informs whether plagiarism is identified (if a small story by a new writer is the source text, it's possible no one may ever notice), and whether and how the community standards are enforced (plagiarism of or by a high-status writer would likely result in a large number of responses). It also may vary depending on how much the final product is valued; if BNF Jane rips off a few paragraphs of Newbie Mary's PWP and turns it into a 30,000 epic, it's possible the bulk of the fandom just won't care about the theft, if Jane's story is sufficiently popular. Again, perceived benefit to the community may outweigh the plagiarized fan's equitable interests.
Conclusions
Fandom is a universe where just about any behavior is possible, and where there are no real penalties at this time for most of that behavior, and where the benefits accruing to this behavior are real (if not large). It's possible to steal stories and put your own name on them and get credit for writing them, or to download and distribute episodes, or to take the clips for your vid from someone else's vid, or to rewrite someone's Duncan/Methos story as a Jack/Daniel story just by using search-and-replace, or put a copy of someone else's vid up on Google Video.
And while there are communities where such behavior is not condoned (I'm a member of one), they are generally small and self-policing. They can only control what occurs within their own borders. If you try to impose your own standards on fandom at large, by doing more than simply refusing to download episodes or read stories that offend you, you are just as likely to be ignored or subjected to the same social sanctions you're trying to apply.
If, on the other hand, you really want to run wild with someone else's legal or equitable property, no one in fandom can prevent you from doing so, and almost no one can punish you for it (for values of "punish" that mean more than sending nasty emails or comment-bombing their LJ). And if you do so, you will in fact gain by it. Because fandom is so large, the communities so diverse, that there will always be someone around to tell you that (a) you have a right to do this; and (b) you're contributing in a beneficial way to the fannish potlatch by doing so.
Whether we do indeed have a legal, equitable, or ethical right to this behavior, and whether exercising such rights in a freewheeling way is necessarily good for fandom as a whole is, alas, another essay entirely. Or two. Or a book.
In conclusion, fandom says: we want what we want; and we want it now. And heaven help anything that gets in our way.
*
Icon chosen with full acknowledgement of its ironic implications. Ahem.
Note: this is a personal essay (i.e., there will be no footnotes). It arose out of the Fandom and Ownership panel at Escapade, where I found myself somewhat startlingly in the minority on a couple of issues. When I wrote up my panel notes, rivkat asked me to expand on these issues a bit; and what I've ended up with is fairly sweeping, based on my experiences in fandom over the last (on-and-off) sixteen years.
Comments are fine--I love to talk meta--but I'd prefer not to start an argument about the baseline ethics of fan creativity: I'm a ficwriter myself, and an appreciate vid viewer. I believe that transformative fair use of corporate products should be protected and allowed to flourish. But I also think that having no broadly-accepted limitations on what we allow ourselves to do may come back to bite us in the end.
I also want to point out that some subcommunities within fandom may (and often do) have different standards than others. Fandom is large: we contain multitudes, and we don't always agree. But this doesn't mean there aren't some commonalities worth examining.
*
Introduction
Premise: that fan respect for the legal or equitable interests of either the producers of content or other fans is situational and, generally, self-serving. What it is not, is consistent.
I'm going to start with a brief overview of the legal situation (since this isn't a legal essay there won't be citations or caselaw); necessarily brief, as there are plenty of people on LJ with far more expertise in this area than me. I'll discuss fan attitudes towards the rights of producers with regards to distribution, profit, and derivative works, and then compare those with fan atittudes towards the rights of other fans over their own products.
Finally, for the purposes of this essay, I'm primarily a descriptivist, not a prescriptivist. It's not that I don't have an opinion, but I'm something of a pragmatist and I don't know how to enforce ethical standards outside small and relatively isolated communities. Not to mention the difficulty in getting fans to agree on what those standards should be.
Legal stuff
One of the things that frustrates me every time I have this discussion is that there is a common failure to differentiate legal standards from community standards or accepted moral norms.
American intellectual property law says that the producers/creators of a text (for this purpose a show, a book, a movie, a character) retain the exclusive right to distribute, profit from, and creative derivative works associated with, that text. (Yes, some exceptions apply.)
A definition: Equity is a principle that a court will sometimes draw upon when the law itself does not recognize an interest, but fairness would. I'm going to use the term equity, or equitable ownership, in discussing a fan's rights in her own creative but derivative products. Fannish equity could include most of the same rights that a producer's legal rights do: the right to payment (i.e. credit) for the work, the exclusive right to control distribution, the exclusive right to create derivative works. It's a right that recognizes the investment the fan has made in the work, but one that (probably) can't be enforced in a court of law. [Note for lawyers: yes, this is not precisely the definition of equity used in legal discourse; but I couldn't come up with an alternative that worked as well.]
What the law (as opposed to equity) says about fannish property rights is, well, undefined. Even the things we generally think of as absolutes may not be. Most fans understand that we don't have the right to make money off fannish activity. Well, yes--and no. I certainly don't have the right to sell hard copies of This Is Not Wartime for $25.99, because the characters and some of the situations belong to MGM/Gekko. What if I drew a lovely picture of Jack and Sam (and/or Daniel) having sex? People do it all the damn time, but the legal underpinnings of it are at best suspect.
Just because the cops have never shut down the dealers' room at Escapade doesn't mean all the activity there is entirely legal. But everyone picks their battles, and fan sales of material with questionable copyright status are relatively small compared to, say, Chinese bootlegged dvds. So fans get away with it.
Anyway, every time you start talking about ownership in fandom, the legal situation is raised, people start throwing around (generally inaccurate) definitions of copyright and trademark, and everyone climbs on board the good ship Fair Use.
The fact is that what the law allows isn't clear; and what is actually enforced is unpredictable. Just because the Jim Henson Company and Creation Entertainment think it's a great idea to have a vid contest at the official Farscape convention every year doesn't make it legal (both RIAA and ASCAP are likely to have an opinion on that). You can have a fan produce the same derivative work in two separate fandoms-- and in one would receive a C&D letter and in the other would get a prize.
No wonder we're all so confused.
Community Standards
So in a world where the legal situation is so uncertain, of course the community standards are going to be equally mutable. They change with context, over time, and with advances in technology. And, I should note, these community standards may vary (and usually do) from the choices made by individual fans. In other words, one fan's ethical choices may differ widely from the general standards that apply within fandom at large, or the community/ies she inhabits.
There are two levels here: the way fans think of the rights of the creators of the source text (I'm going to call them producers, and include actors, writers, production companies, etc); and the way fans think of the rights of other fans. We treat them differently; whether this distinction is logically sustainable is another question.
Legal standards, as uncertain as they are, seem to me to be mostly applied to producers. In fact, my impression is that it is commonly understood that fans have no legal rights at all in either the source product or their derivative works. Now, this isn't necessarily true (here is the mandatory reference to Rebecca Tushnet's article on legal rights in derivative works): but it's accepted as gospel pretty much everywhere in fandom. Except when it's not--and I'll get back to that later.
Fans and Producers
Producers' legal rights are acknowledged without, generally, being respected. The rights of the copyright holder include the right to control distribution, to make money off a product, and to create works deriving from it, among others. These are undisputed, whether or not we agree that it is proper and morally correct to have such rights, and to exercise them.
But a fan's exercise of respect for producers' rights varies depending on the right in question, the identity of the producer, the history of the community and the interaction between the fans and the producers (if any), the risk of penalty, and what the fan stands to gain.
Case in point: the SaveFarscape campaign refused to condone any violation of the Jim Henson Company's rights to make money or control distribution of its product (i.e., no downloading episodes, no selling of buttons with characters on them to raise money for the campaign). On the other hand, SFS freely engaged in creation of derivative artwork for websites--although eventually SFS obtained legal permission from JHC to pay for ads using authorized images from the show. (This was a first in fandom, so far as I can tell.) What the fans stood to gain from supporting JHC was clear, and the producers historically had a fairly close and friendly relationship with the fan community. Additionally, SFS had sufficient status to enforce this position: they were big, they had the contacts at JHC, and trying to be clean in the copyright realm gave them a certain amount of moral authority. Some other fan group trying to enforce that code might not have been nearly as successful.
Other fan campaigns have gone the other way: the broad distribution of the Global Frequency pilot was associated in part with an attempt to show the producers that there was an audience for the show. It also helped that the executive producer didn't seem to mind, although he was careful not to say "go forth and torrent."
But these are situation-dependent circumstances, and it's entirely possible (and indeed likely) that some Farscape fans associated with the campaign were uploading episodes to the filesharing networks, and that some Global Frequency fans thought the torrenting was a bad idea, and would work against the desired effect.
Fan perspectives on the producer's exclusive right to create derivative works (as opposed to make money and distribute) are less varied, in part because it's the creative right that is so close to the heart of the fannish experience. It's here that the fan community standard most clearly diverges from the legal standard.
There is an argument to be made that fair use applies to the creation of fanfic, fanvids, and fanart. This essay is not really about that argument, but I acknowledge that it exists. My point is that while some fans rely on that argument to justify their creation of derivative works, many don't bother.
In effect, the community standard of fandom is that the legal right of the producers to control derivative works is irrelevant. On an individual basis, fan positions vary: some fan writers, for instance, only write fic based on television or movie sources rather than compete directly with a written source. But it generally comes down to a question of whether the producer has spoken on the issue--so Anne McCaffrey's Pern series has fic written about the universe but not the characters, while Lois McMaster Bujold (ex-ficwriter herself) is apparently quite cheerful about the prospect of fanfiction about Miles and Ivan (while careful not to embarrass her publisher). Lestat fic, if it's still written, on the other hand, has gone entirely underground because Anne Rice fiercely resents anyone else writing in her world.
This is a realpolitick kind of response: but it's neither logically nor ethically consistent, particularly if the producers of the source are bound by their own legal obligations not to speak on the matter. Why should Anne Rice get the respect and CS Lewis not? And very little of this has to do with who actually has the legal right: fans are far more respectful of the producers' equitable interests than their legal interests. CS Lewis' wishes are irrelevant because he is dead, even though the Lewis estate retains his rights. Tim Minear doesn't own Angel, any more than David Kemper owns Farscape; but if Minear or Kemper asked the fans to stop writing fic? Many of them would.
But some wouldn't. Because what the fan gains from the activity means more to her and her community than would be lost by knowing that she was acting in opposition to the producers' wishes. Particularly if there were no indication that legal action were likely to be taken.
I can't, frankly, come up with a way to describe the fannish response to producers' legal rights, except to say that it depends, in the end, on what the fan wants. This perpetual argument about the ethics of fan creativity is the ultimate in result-oriented reasoning. The average fan will make whatever argument is necessary to justify her continued engagement in her hobby--and I do not exclude myself from this conclusion.
The distinctions drawn between FPF and RPF, between downloading UK broadcasts and American ones, between movies and television shows, between book-based and media-based fandoms, between living and dead authors, between single-author and multi-author sources: it all comes down to ways to justify getting what we want. And while today I try not to download anything I can rent legally or watch on broadcast or cable in the US, if in three months I get hooked on Rome, I'm sure I'll find a rationale to justify downloading that without paying for HBO.
Note, please: I'm not saying that nobody in fandom has any ethical principles. I am saying that, when considered as a whole (inasmuch as fandom can be considered as a whole, since it's so entirely decentralized), there is no consistency in any of our arguments. What is considered good behavior in one fannish community is not in another, and for no logical reason that can be discerned.
Fans and Fan Ownership--Distribution and Profit
As I said above, it is commonly understood that fans have no legal rights at all in their derivative works based on copyrighted sources. Except that this, also, is honored in the breach; and for the same reasons.
Generally, anyone who questions that premise, that fans have no legal right to their product, is subject to the fiercest of social penalties. Fans who try to sell their fic, in particular, are held up to ridicule. Except when they're not.
Because for every CousinJean, who was drummed out of LJ-based fandom for wanting to get paid to stay home and write her fic, there's a CousinMaryJane, who sells PDF downloads of her zines for $8 each. And someone is buying all that derivative art for sale on websites and in dealers' rooms. If we know we have no legal right to something, why are we willing to pay for it?
There is a market for fan creations, and our willingness to claim that fans have no right to benefit financially from fan creativity ends at the point where we can't get our fix without spending money. Fic used to be sold--the only reason money doesn't change hands now is because the internet allows it to be distributed for free. (Sure, it was supposed to be sold at cost, which was an distinction the law wouldn't recognize: the question is money changing hands, not the percentage of profit.)
One of my betas on this essay pointed out that there is and continues to be something of an underground market for fan creativity, and this market can be either straight payment: Fan the Vote involved the exchange of fic for political donations, the Vividcon convention regularly has a "Vidder auction" where a vidder prepares a vid in exchange for a donation to a scholarship fund for the convention, fanfic has been written in exchange for charitable donations; or barter: people regularly trade drabbles for icons or for paid-LJ time. Fandom is supposed to be outside the market economy; but the truth is that the medium of exchange is all that's different.
The straight cash market for fan creativity has some justification, of course. Fan art is a lot harder to transmit online, especially if you want something pretty for your bedroom wall. Fanvids are prettier, higher quality, and more convenient on dvd. Both of those cost money to produce and ship, and so we're willing to pay for them.
Now, nobody claims that this exchange of money for goods gives fans a legally-protected right to make these exchanges. In other words, if I sold a copy of "Scooby Road" to someone, Luminosity couldn't sue me for lost profits without getting tossed out of court (because she has no legally recognized right to profit from Buffy the Vampire Slayer). But if I were to do that, I would be refusing to recognize her equitable right of ownership in the vid set.
The reasons that vidders and writers often say they want control of distribution of their work generally have to do with legal liability. For vidders, this is in fact an issue of real concern. Working with the source text in the way they do, and working with music files in the current legal environment, leaves them open to infringement claims in a more obvious way than ficwriters are. So keeping a close eye on where their work is, password-protecting the websites, and forbidding unapproved duplication, is a reasonable means of protecting themselves.
But it's also an assertion of ownership over the product. "I made this," says the vidder. "I get to say where it goes." And many ficwriters do the same: does anyone else remember the "Archive:" line on alt.tv.x-files.creative posts? "Gossamer fine; anyone else, please ask."
Except things are beginning to change--or already have, depending on where you are. Control over distribution feels, to me, like it's becoming less of an issue in fannish circles. Many vidders don't password-protect their sites, and cheerfully upload their vids at centralized archives. Vids are far more transferrable now than they used to be, back in the VCR/VHS days. You can make infinite perfect copies of a digital file, after all. So once one copy has been downloaded from a vidder's website, her actual ability to control where it goes is lost. And that's how you end up with Buffy vids uploaded to Google Video, or YouTube. The mechanisms for control are lost; and, as a result, the community is beginning to stop respecting that control.
I don't recall the last time I saw an Archive header on a fic post; do you? I've seen people upload other people's fic to archives because they didn't want the stories to be lost. I've seen plenty of people share stories in email because the original writer has disappeared and the stories had disappeared off the web. Regardless of what the original writer wanted, the fans' interest in their fix is of more importance than any mere 20th-century interest on the part of the writer in controlling where their stories went.
The fact is that in a digital age, in order to share the product of your creativity, you have to give away more than just access: you have to give away physical ownership. And that throws all the old precepts into question.
And that brings us, finally, to the question of derivative uses. Which in turn all ties back to credit. And credit goes back to status, and the whole thing comes full circle.
Fans and Fan Derivative Creativity
I think the same factors affecting the change in attitudes about distribution of fannish works are also affecting attitudes about derivative creations. Plus a few other issues, frankly. In the Escapade panel that inspired this whole essay, one of the moderators noted that fans now seem to feel less ownership over their own creations than they once did. On the other hand, there were a number of stories told in the panel about fans in the 1970s writing stories based on other stories, without disclaiming them or asking permission. A poll of the attendees of the panel indicated that only 2 or 3 people in the room (of about 20-30 total) felt proprietary about their fan creative products. So it looks like things are changing, or have always been changing; it's a little unclear.
That said, from my perspective, the fannish attitude about creating works based on other fan creativity seems to depend, like the attitude towards producers, on the community in question, the relationship between the parties, and what the second fan stands to gain. If there is no relationship between the two fans, or the second fan stands to gain a great deal from the derivative work, then the likelihood is greater that whatever the wishes of the first fan, they would be ignored.
Community standards also come into play: the rules of engagement, if you will. For instance, if troyswann wrote a story and posted it, and I didn't like the characterization of Daniel Jackson, and I wrote another version of the story and posted that, well. There's a good chance people would look at me funny, particularly if I didn't talk to her about it first. (Although troyswann would be totally cool with it, in actuality.) However in the pegasus_b community, that's pretty much what I did. People were writing a Daniel that I didn't find all that interesting, based on the backstory he was given. So I sat down and wrote a different Daniel into the universe, one with a different history and different personality traits. And nobody looked at me funny, because the entire point of Pegasus B is that anyone can riff on anyone else's work. Anyone can write a sequel or a parody or a backstory or an AU of any other story posted to the community. Those are the ground rules, and if you're not comfortable with having other people play with your toys, you don't get in the sandbox. These conditions would also be assumed to apply to, say, the various Remix challenges: no one signs up without agreeing to the terms of the challenge.
My personal experience with derivative stories has been when people have approached me to ask if they could spin off my story. And my response has always depended on what they wanted to do with the story, and how much I trusted them. I'm far more comfortable with friends taking an idea and running with it (which is how I ended up with three other people writing Life During Wartime) than I am with complete strangers.
But what I found particularly interesting during the panel was the impression I got that not only am I in the minority with my discomfort about having strangers rewrite one of my stories in some way (either by rewriting or by writing a sequel), but that I'm wrong to have this feeling. Not only do I have no legal right (which I am aware of), I have no equitable right, either. Apparently I am out of step with the fannish zeitgeist. Ownership and territoriality over one's own words/ideas/characters is (a) not something fans are allowed to have because it's all borrowed anyway; and (b) not something that can be enforced, anyway, so why worry about it?
This was something of a stumper, as was the implication that any concerns I had about having material be borrowed and reworked were entirely my own issue. I felt I was being told that the default setting was: borrow if you like. If the first writer didn't express an opinion about spinoff/remixes, you can assume it's allowed. Which is at the least relatively consistent with the fan position regarding the producers of the original text. Hoorah for consistency!
[My personal response to borrowing from fans versus borrowing from producers--I ask the fans but not the producers--has to do with who is a member of the community and who isn't; but see above re: result-oriented reasoning. I cannot trust my own logic, really.]
Now, it should be noted that the issue of derivation needs to be kept distinct from plagiarism. Taking a story, or part of a story, or a couple paragraphs of a story, and putting them out under your own name is plagiarism; just as taking a sequence of clips from someone else's vid and putting them in yours would be. Because fans place a lot of importance on credit (it's vital to status accumulation), falsely taking credit is one of the worst violations of fannish community standards. If you don't at the very least disclaim ownership of those other parts, you will be held accountable, and very likely drummed out of fandom, or at least publicly shamed.
But even plagiarism cases have shades of grey. What if a few lines of dialogue in your story are from an episode of the television show, and you don't disclaim them specifically? Is it plagiarism if the average fan of the show would recognize the text as belonging to Joss Whedon? What if it's a crossover with an obscure fandom and you use dialogue from the obscure fandom, so most of your readers don't know the source? The community response to these sorts of questions--varies. Again.
One of the points that was made in the Escapade Panel was that the community response to accusations of plagiarism often depends upon who knows about the plagiarism (or unauthorized borrowing), and what their position is in the fandom. Status absolutely informs whether plagiarism is identified (if a small story by a new writer is the source text, it's possible no one may ever notice), and whether and how the community standards are enforced (plagiarism of or by a high-status writer would likely result in a large number of responses). It also may vary depending on how much the final product is valued; if BNF Jane rips off a few paragraphs of Newbie Mary's PWP and turns it into a 30,000 epic, it's possible the bulk of the fandom just won't care about the theft, if Jane's story is sufficiently popular. Again, perceived benefit to the community may outweigh the plagiarized fan's equitable interests.
Conclusions
Fandom is a universe where just about any behavior is possible, and where there are no real penalties at this time for most of that behavior, and where the benefits accruing to this behavior are real (if not large). It's possible to steal stories and put your own name on them and get credit for writing them, or to download and distribute episodes, or to take the clips for your vid from someone else's vid, or to rewrite someone's Duncan/Methos story as a Jack/Daniel story just by using search-and-replace, or put a copy of someone else's vid up on Google Video.
And while there are communities where such behavior is not condoned (I'm a member of one), they are generally small and self-policing. They can only control what occurs within their own borders. If you try to impose your own standards on fandom at large, by doing more than simply refusing to download episodes or read stories that offend you, you are just as likely to be ignored or subjected to the same social sanctions you're trying to apply.
If, on the other hand, you really want to run wild with someone else's legal or equitable property, no one in fandom can prevent you from doing so, and almost no one can punish you for it (for values of "punish" that mean more than sending nasty emails or comment-bombing their LJ). And if you do so, you will in fact gain by it. Because fandom is so large, the communities so diverse, that there will always be someone around to tell you that (a) you have a right to do this; and (b) you're contributing in a beneficial way to the fannish potlatch by doing so.
Whether we do indeed have a legal, equitable, or ethical right to this behavior, and whether exercising such rights in a freewheeling way is necessarily good for fandom as a whole is, alas, another essay entirely. Or two. Or a book.
In conclusion, fandom says: we want what we want; and we want it now. And heaven help anything that gets in our way.
*
Icon chosen with full acknowledgement of its ironic implications. Ahem.