When I was first ventured into the mid-2000s fledgling world of social media, one of the forces that shaped my experience – and that has come up in my LIS classes many, many more times than I expected it to – was online fandom culture. I was fourteen when I started my LiveJournal, and I probably read more fanfiction than original work during my high school years. I’m … not going to comment on whether or not that trend has continued into my adult life.
What definitely has continued into my adult life is an interest in the phenomenon of fandom: its evolution through history, its implications as a broader social model, and the ethics of fanwork produced and shared without the explicit blessing of the creators of the source material from which those works derive. That third thing is the one that tends to come as part of my LIS studies, and it’s the first thing I think of whenever anyone mentions copyright and intellectual property. Dedicated fanwork hosting websites like Archive of our Own are digital libraries in their own right, sourcing their content from thousands of creators, maintaining searchable databases through custom metadata schemas, and doing their best to protect the legal rights of their contributors in the rocky terrain of derivative work.
One of the most interesting pieces of scholarship I’ve come across about fandom is Brittany Johnson’s piece about fanfiction and copyright law titled Live Long and Prosper. In addition to its excellent title, the article comes from a legal scholar who can speak with authority on the implications of fanwork. What used to be a purely nonprofit enterprise has become more complicated with the phenomenon of ‘pulling to publish,’ when works like Fifty Shades of Grey are plucked from their fandom roots by publishers and turned into works of ‘original’ fiction. This upsets the plausible deniability that has protected fandom in the past – that fanwork was fair use because it was not and would never be a source of profit, much less a source of profit that would pull income from the original title. Fair use comes after clearing four hurdles – the intent of the new work, the nature of the copyrighted work, the amount of the copyrighted work used in the new work, and the impact of the new work on the potential market of the copyrighted work. Some fanworks borrow more heavily from source material than others, but the precedent of pulling to publish places even the most derivative of derivative works in a tenuous position if the copyright holder of the source material decides they’re not happy with something they perceive as a threat to their own revenue.
The fandom conversation came to mind as I read Peter Hirtle’s Learning to Live with Risk and its discussion of copyright in libraries and archives. Hirtle discusses institutions who are “unintentionally violat[ing] copyright law with the best intentions” and who distribute intellectual property in ways that may not be protected under the banner of fair use. As applied to fandom, while the hosting archive has full permission from the creator of the fanwork, they might get trouble from the copyright holder of the source material from which the fanwork derives, which puts them in a similar position to the situations Hirtle discusses. Fandom spheres are the ones in which I have the most personal experience, but nontraditional archives, particularly digital nontraditional archives, will likely have a slew of similar problems. If a library holds digitizations of an artist’s collage pieces, for example, are they beholden to the original copyright holders of the assets used in each collage? It’s difficult to anticipate when copyright holders will decide to crack down; some unexpected creators have swept through fandom spaces to purge fanwork of their intellectual property for a number of dubious reasons.
Johnson proposes an amendment to existing copyright law that would protect derivative works, as long as the hosts of those works (digital fandom libraries) had contributors meet non-commercialization and attribution standards agreed upon by the hosts and the copyright holders of the source material. It would be a huge shift in fandom culture, perhaps even moreso than the shift already happening around pulling to publish; fandom has always been a clandestine thing, a space primarily occupied by unpaid creative women sharing their work amongst themselves, but as it becomes a more mainstream phenomenon, the way that creators (particularly female creators) occupy those spaces is changing. An amendment to copyright law that would protect both creators and the hosts of their work might be necessary as fandom moves into its new digital era. No matter what happens, however, the owners and curators of digital fandom archives will be in a unique position as the bridge between fandom creators and copyright holders.
Hirtle, P. (2012). Learning to live with risk. Art Libraries Journal, 37(2), 1-15. http://ecommons.cornell.edu/bitstream/1813/24519/2/ARLIS%20UK%20final.pdf.
Johnson, B. (2016). Live long and prosper: How the persistent and increasing popularity of fan fiction requires a new solution in copyright law. Minnesota Law Review, (4), 1645. http://www.minnesotalawreview.org/wp-content/uploads/2016/04/Johnson_ONLINEPDF.pdf.