Photo above from Pexels.com, below provided by Rebekah Pierce
Over the last 6 years most of my academic interest has been in fan culture and fandom! I have had the opportunity to research and study this community, and develop admiration for many authors and researchers like Henry Jenkins, a prominent expert on Fan Culture and participatory engagement with the media! I have linked his website to the photo of the mountains to the left! I even got to meet one of my academic idols, Lynn Zubernis at a convention, her blog is linked to our selfie together on the left! I wanted to share some of the amazing work that has been done over the last several decades by many different authors to help advance the knowledge and understanding of fan culture and fandoms as a unique and influential audience! I also want to provide more detailed information about Copyright, Freedom of Speech, and Fair Use, to give you more resources to make sure that your creative endeavors are protected and safe!
Research Literature Review
For decades fan culture existed on the fringes of society. Modern fan culture was born in the 1960’s, the early days of TV science fiction, with Gene Rodenberry’s Star Trek, but according to Henry Jenkins, its roots grew out of the socially acceptable sports fanaticism over teams and events (Jenkins, 1992). Fans’ passionate and obsessive behaviors relating to their fannish texts did not fit into the patterns ascribed to audiences at the time, a much more passive receiver role. Jolie Jenson explored this role relating to fans:
The fan is understood to be, at least implicitly, a result of celebrity – the fan is defined as a response to the star system. This means that passivity is ascribed to the fan – he or she is seen as being brought into (enthralled) existence by the modern celebrity system, via the mass media” (Jenson, 1992, p.10).
This inactive receiver perception was reiterated by Jonathan Gray; “the fan has notoriously been regarded as a dupe, a passively blind receptor to corporate propaganda and establishment ideology, and an obsessive, strange social outcast” (Gray, 2003, p.67). Fans and fan culture defied the audience behavior notions of media producers and theorists, they diverged significantly from the norms and societal expectations of media consumption.
Jenkins (1992) argues that early on fans and fandom were perceived by the mainstream media and audiences as abnormal and even frightening. Their behavior was seen as pathological rather than as a beneficial commodity; as at best a nuisance and at worst a danger. Jenkins notes that even into the 1990’s the implication of fandom was “of religious and political zealotry, false beliefs, orgiastic excess, possession, and madness, connotations that seem to be at the heart of many of the representations of fans in contemporary discourse” (Jenkins, 1992, p.12). Negative connotations informed representations of fan culture assigning fans into three main archetypes: the psychopath, the loner sycophant, and the overtly sexualized groupie. All three of these archetypes were styled as disturbed and inappropriate responses to media exposure (Jenkins, 1992). Similarly, Gray (2003) claimed that the fannish texts themselves contributed to the isolation of fan culture by mostly existing outside of mainstream popular genres. “The word ‘fan’ itself is often used pejoratively,… thus large swathes of viewers and texts alike have been written off” (Gray, 2003, p. 67).
Even from the outskirts of society fan culture maintains a close but very complicated and evolving relationship to the media industry. The objects of their obsession are provided by the media, without which fan culture would not exist, but without dedicated fans many media texts would be short lived. There has been a shift in this relationship. What was previously unidirectional producer to consumer relationship has become multidirectional. The reception and perception of fan culture has shifted in the media industry. According to Matt Hills in his 2002 publication Fan Cultures fans are identified as specialized consumers, displaying both commercial and anti-commercial ideologies. Viewing fandom members solely as consumers limits understanding of fans as producers and delegitimizes the hard-earned knowledge and expertise that fans acquire (Hills, 2002). However, being imputed the role of consumer changes the tenor their media reception “Fan-consumers are no longer viewed as eccentric irritants, but rather as loyal consumers to be created, where possible, or otherwise to be courted through scheduling practices” (Hills, 2002, p.36). The initially cold reception of fan culture by the media industry has gradually morphed to a warmer one. Their obsessions being re-evaluated as loyalty, and worthy of being wooed into existence as long as they never present as an economic competitor (Gray, Sandvoss, and Harrington, 2007).
Fan culture does represent a significant source of income for the media industry. Fans are hyper consumers, they are heavily invested in and spend lots of money on resources related to their fannish texts. According to Mark Duffett: “Fans are networkers, collectors, tourists, archivists, curators, producers, and more” (Duffett, 2013, p.21). Fan culture has an economic and social impact and influence on media. Members of fandoms are the ones buying merchandise, multiple viewings at theaters, attending conventions and events, and even contributing to funding of projects. The intense fans of a media text will purchase each new iteration of their fannish text. Physical and digital copies, special editions, games and toys and any memorabilia.
The advent of the internet has broadened the playing field for fan culture. The internet is “fandom writ large” (Jenkins, 2006B, p.138). Jenkins (2012) notes that the communities within fan culture are frequently at the leading edge in adopting new communication technology. Jenkins pioneered the idea of convergence culture or participatory culture, seeds of this idea were planted in the early 90’s but he elaborated the idea more fully in his 2006 book Convergence Culture: Where Old and New Media Collide. According to Jenkins (2006a), the potential for the internet to transform fan culture is unlimited, if taken advantage of properly. He states that fans and media consumers have the chance to hold greater power in the convergence of media and culture (Jenkins, 2006a). Jenkins’ convergence culture completely upends the established producer/audience roles, affording both sides participant status and the ability to interact with each other (Jenkins, 2006a). Participatory/convergence culture does not completely even the playing field, there are still power disparities between individuals and corporations, and access inequality on the individual level (Jenkins 2006a). Natalie Montano further elaborates that participatory culture and fan culture interacting with media properties drives conversations about media and culture; “Through this process of audience participation on the internet, copyrighted works become part of a cultural dialogue about what we desire to see in popular stories and what we desire to be changed in society at large” (Montano, 2013, p. 701).
While much of fan culture and fandom membership revolves around the individual’s relationship to a media text it is not the only relationship at play. Fan culture may begin with a media text, but the heart of fan culture are the relationships within fan communities. Fan culture is a vital location of community and identity for fans. Even pushed to the margins and fringes of the socio-cultural playing field for so long, robust communities have developed (Barton and Lampley, ed, 2014). Fan culture has long ignored the limitations of geography, as Jenkins puts it: “fan communities have long defined their memberships through affinities rather than localities” (2006, p 137). Fan cultures and fandom communities’ value individual interpretation of their texts, using it as a source of discussion (Jenkins, 1992). What makes fandom communities unique and significant in comparison to “normal” audiences is the internal interactivity:
Fan reading, however, is a social process through which individual interpretations are shaped and reinforced through ongoing discussions with other readers. Such discussions expand the experience of the text beyond its initial consumption. The produced meanings are thus more fully integrated into the readers’ lives and are of a fundamentally different character from meanings generated from a casual and fleeting encounter with an otherwise unremarkable (and unremarked upon) text (Jenkins, 1992, p. 45).
Fandom communities provide locations for fans to navigate and tinker with their identities and relationships to each other and their texts.
Fan culture is an “institution of theory and criticism, a semi-structured space where competing interpretations and evaluations of common texts are proposed, debated, and negotiated and where readers speculate about the nature of mass media and their own relationship to it (Jenkins, 1992, p. 86)”. The sense of community and connection with like-minded people creates a bond and forges an identity “people share stories, commentaries, and ideas…and this exchange makes fan communities more than mere groups of casual online friends (Kaveny, 2010, p.44). It is through these community connections that the sting of extra-fandom stigmatization could be internally surmounted; taking external negatives to create internal badges of honor and membership (Jenkins, 1992).
Fan Fiction, First Amendment Rights, and Copyright
An important tool of communication and development of community within fan culture is writing, sharing and discussing stories. Liberally borrowing from media texts allows the writer to insert themselves, or alternative versions of themselves, into the world of their fannish text. Fan fiction writers are predominantly female but are operating in the male dominated media industry (DeKosnik, 2009). Fan fiction allows the author to right the wrongs they perceive in the media industry. To internally correct the lack of diversity in media texts by gender or race bending characters or inserting slash relationships, which are same sex relationships, not present in the source material. Within fandom any member is a potential producer, and has a perspective to share; “Fandom recognizes no clear-cut line between artists and consumers; all fans are potential writers whose talents need to be discovered, nurtured, and promoted and who may make a contribution, however modest to the cultural wealth of the larger community” (Jenkins, 1992, p. 280). Jenkins (1992) further writes about the duality between the fan fiction authors veneration for and frustration with their fannish texts, that fan fiction is the attempt to resolve this tension: “fan writers do not so much reproduce the primary text as they rework and rewrite it, repairing or dismissing unsatisfying aspects, developing interests not sufficiently explored” (Jenkins, 1992, p. 162). Jane Becker (2014) writes that fan fiction should not be viewed as an end product commodity alone, but rather that the performance of fan fiction writing in the context of the fan community is equally important. Fan fiction is a method for fans to engage with and participate in the dialogue surrounding media properties, rather than allow it to be monopolized by media owners. “In fan communities, readers explore and critique the ideas presented in texts and, if necessary, reshape them” (Becker, 2014, p141).
The relationship between the fan fiction writing community and the media producers can be edged with tension. Jenkins positions that the dynamic of “the relationship between fan and producer, then, is not always a happy or comfortable one and is often charged with mutual suspicion, if not open conflict” (Jenkins,1992, p 32). He also points out that often fan communities are born as a “response to the relative powerlessness of the consumer in relation to powerful institutions of cultural production and circulation” (Jenkins, 1992, p. 278). Jenkins’ book focuses on the ways that fans pilfer or “poach” from their chosen text in order to create from it a new object, whether as an act of devotion, or as an attempt to control or fix perceived problems within the text. Becker expands this idea “fan fiction represents an increasingly important exercise of imaginative freedom that can serve as a response to, and occasional balm for, a culture increasingly driven by a handful of media conglomerates” (Becker, 2014, p 138).
Fan fiction writers are somewhat aware that their work exists in tenuous legal gray area. The difficulty is that it does violate the black and white idea of copyright. It is also difficult that a fair use defense against copyright litigation is a costly battle to wage over an historically uncertain outcome. The fan fiction community balances this uncertain legal standing by self-regulating, keeping their heads down. They self-impose protections into their fan fiction sites, such as pre-emptive credit to original author, and not seeking commercial gain. The community reacts harshly to members that violate their norms, with swiftly enacted retribution through public shaming within the community or even expulsion from the community (Fiesler, 2008). Fan fiction websites hold millions of stories created by fan authors, with varying degrees of internal organization from sophisticated search parameters to the ability to select categories of stories by fandom, genre, style, characters, length, keywords and many more. The largest online repository is fanfiction.net, but one of the best is archiveofourown.org. It is a database that is run by the Organization for Transformative Works, a non-profit organization that volunteer and donor run. The OTW supports fan authors and educates about fair use rights in fandom communities, even providing legal advice. The OTW also runs a high-quality academic journal, Transformative Works and Cultures, which furthers the research about fan cultures, fan fiction, and copyright.
There is a legal defense to using copyrighted materials in ways that would technically be infringement in a contextual vacuum; fair use. Fair use is permissible use of copyrighted material because it is used in manner that is non-commercial, transformative, or for public benefit. It is meant to balance the rights of the public to disseminate materials with the rights of the copyright holders to benefit from their work. Fair use covers purposes such as criticism, comment, news reporting, teaching, research, and scholarship. It is fair to use material for parody and satire, educational purposes, and when the new work transforms the original into a new context. Fair use is important because it allows creation to be inspired by and informed by the works of the past, to help guide the development of the future of culture. The courts use a four-part test to decide if a copyright infringement is a fair use of the material or not. The four sections are balanced against each other, it is not required to have all four in one’s favor for a defense to be successful.
- What is the purpose of the use? This first part of the test asks how the defendant is utilizing the material borrowed, is it commercial or non-commercial, for educational purposes, is it a critique of the material, does it transform the material or only duplicate it?
- The second question asks: What is the nature of the copyrighted work? This test looks at whether the work is still available, is it a single use or multi use work, is it informational or creative, is it published or unpublished?
- The third part of the test asks what is the amount used in relation to the copyrighted work? What is the proportion of material used, is it the heart and soul of the material?
- The fourth and currently final question is what is the effect of the use on the potential market for the copyrighted work? For fan fiction this test usually comes down in the favor of the fan since typical fan fiction is non-commercial and presumes existing familiarity with the source content.
There is an argument by the Organization for Transformative Works, that all fan fiction is by nature transformative, a comment on the original, and thus not a threat to this factor: “transformativeness has in some cases seemingly rendered the fourth factor redundant under the reasoning that if a use is transformative, it presumably will not function as a market replacement” (Becker, 2014, p 148). A notable absence from the four-part test is any type of moral rights for copyright holders. The US is part of an international copyright treaty called the Berne Convention of 1886, though we didn’t join until 1989. The Berne convention infers the following rights to copyright holders:
Independently of the author’s economic rights, and even after the transfer of said rights, the author shall have the right to claim authorship of the work and to object to any distortion, mutilation, or other modification of, or other derogatory action in relation to, the said work, which shall be prejudicial to his honor or reputation. (Berne Convention, Article 6bis)
This wording provides recourse for copyright holders to object to distortion and mutilation of their works, moral rights, but the US does not enforce this segment of the treaty domestically. This lack of moral rights protections for copyright holders in the US has allowed segments of fan culture and fan fiction to develop with story lines that can be very disturbing.
The push to add a fifth moral rights factor to this fair use test would be problematic for fan fiction writers. Moral rights would protect copyright holders’ rights to paternity and integrity. Paternity rights include the right to claim authorship later if publishing under pseudonym or anonymously, and the right to prevent their name from being associated with other works. Integrity rights are the ability to object to distortion or mutilation of copyrighted work. Moral rights weigh factors that are missing from the current fair use test and that are damaging to copyright holders, but it is difficult to assign hard ratings or determinations to a moral judgement. Brian Link states: “Mutilation has the potential to harm the original in noneconomic ways that the non-mutilating work does not. While not an economic harm, mutilation may harm the integrity of the original and the association to the copyright owner” (Link, 2010, p 177). Currently the more transformative a work is the more likely it is to be fair use, but this creates an unfair imbalance favoring works that make drastic and even repulsive changes or additions to the source material over works that stay within the moral atmosphere of the original. “By not recognizing non-economic harm, the current fair use balancing test encourages writers of secondary works to mutilate and distort the characters of the original works to escape infringement liability” (Link, 2010, p 173). Link suggests that adding a moral rights fifth test would be a fairer balance for the entire test. Specifically, it would pair together with the first test as a check and balance (Link, 2010). It is my opinion that this sort of addition to the tests would open a Pandora’s box of difficulty creating legal definitions of mutilation or integrity.
There is also movement to add the First Amendment as a part of fair use legal defenses. This would be a step toward removing the impediments to free speech that copyright places on citizens. Currently copyright law overprotects and privileges the copyright holders at the expense of the public and the marketplace of ideas, a First Amendment defense would help resolve this imbalance.
Promoting the First Amendment as a proper defense under copyright law will combat the unnecessary chilling effect preventing new ideas from developing and entering the marketplace. Likewise, upholding First Amendment principles will advance public interest through unfettered use of copyrighted material… The courts’ current perception of fair use is too speculative, with circuits unevenly applying the factors when faced with infringement claims (Agnetti, 2015, p 158).
The uneven application of the fair use test, copyright litigation, and the notice and takedown safe harbor that the DMCA provides ISPs combine to create an environment where fair use of copyrighted material is chilled. ““Although the Copyright Act specifically contains the Fair Use Defense to protect socially beneficial endeavors like fan fiction, the power and financial imbalance between novice writer and successful author oftentimes nulls the effectiveness and availability of the Defense” (Montano, 2013, p 694). Responding to and defending one’s self against copyright litigation is an expensive endeavor, litigation can be used punitively against fan fiction authors. This is especially true because fan fiction exists in an arena that will never impact the primary author’s marketability, and in fact can bolster awareness of the material, suppression of speech through fear is repugnant.
If you would like to check out the articles and books referenced in the information above, the details are provided below! Many will be accessible online or through a local or school library!
Agnetti, M. A. (2015). When the needs of the many outweigh the needs of the few: How logic clearly dictates the first amendment’s use as a defense to copyright infringement claims in fan-made works.Southwestern Law Review, 45(1), 115-164.
Becker, J. M. (2014). Stories around the digital campfire: Fan fiction and copyright law in the age of the internet. Connecticut Public Interest Law Journal, 14(1), 155.
Berne Convention for the Protection of Literary and Artistic Works, (1886).WIPO.int. Retrieved from http://www.wipo.int/treaties/en/text.jsp?file_id=283698#P83_10372
Busse, K., and Hellekson, K., (2014). The fan fiction studies reader. Iowa City: University of Iowa Press.
Copyright Act of 1976, Pub. L. No. 94-553, 90 Stat. 2541
De Kosnik, A. (2009). In focus: Fandom and feminism: Gender and the politics of fan production: Should fan fiction be free? Cinema Journal, 48(4), 118-124. Retrieved from http://libproxy.temple.edu/login?url=https://search-proquest-com.libproxy.temple.edu/docview/1672792?accountid=14270
Digital Milennium Copyright Act of 1998, Pub. L. No. 105-304, 112 STAT.2860. Retrieved from https://www.copyright.gov/legislation/pl105-304.pdf
Duffett, M. (2013). Understanding fandom: An introduction to the study of media fan culture. New York: Bloomsbury. Retrieved from http://temple.summon.serialssolutions.com.libproxy.temple.edu/2.0.0/link/0/eLvHCXMwdV25CgIxEB28CjtPPDGVnRIzmzWpRbEVFEvZHFt51P69E9ddVsEqhIGESULezJD3AoBiyRc_d4JFXBnlUxcl3BlpraXAXTlhLF9758z3JyaFdjQtEW2GWwaZpqsv3tWE2gXBoMC1rEKVQt4g73g4F7UVrintkvzN44oo5FFSYt6JY40613r6GHmpH-wEVY1syhLW7FpQC_yDNlT8vQOjglDC5iyj0rJM2ePZhe6pzExhKbWPWw9mu-1xs19kQ18-9ZlL7ooWfahRzu8HwIRER8iukjjE-5FUBORG2zRBlEmEbgiDf6OM_pvG0BTv3xxCBWEC9ZROuJ_mvr4A4HRydg
Fiesler, C. (2008). Everything I need to know I learned from fandom: How existing social norms can help shape the next generation of user-generated content. Vanderbilt Journal of Entertainment & Technology Law, 10, 729-893.
Gray, J. (2003). New audiences, new textualities: Anti-fans and non-fans.International Journal of Cultural Studies, 6(1), 64-81. doi:10.1177/1367877903006001004
Gray, J., Sandvoss, C., & Harrington, C. L. (2007). Fandom: Identities and communities in a mediated world. New York: New York University Press.
Hills, M. (2002). Fan cultures. New York; London: Routledge.
Jenkins, H. (1992). Textual poachers: Television fans & participatory culture. New York: Routledge. Retrieved from http://temple.summon.serialssolutions.com.libproxy.temple.edu/2.0.0/link/0/eLvHCXMwdV1NT8MwDLUYXCYhAQO0bgN64rYpS5ePnqdNXEGTOEZtkp7QQNo47N9jN2u2TuyY-tA4adxnx34GyPiEjU9sQmUzhY6El9orP82ccqLkhWc8d6ospW03MYnc0bhEuBluQjRNXz7m1dSxC4lYhmcd6CDkJXrH988YW8EPFc2u3heg5whJpuxowPMD804t1O0xtc0-uYRu488wnaP_0PIWLqk24Q4u_LoH3Wi8dj0YxMqT9DUNNbdpoADZ3cPNCk3wLz75-a75mzcP8LJcrOZv4_AOsw_imEZfwR_huqDk9_W2LpJzfUiZdUJYr2Ul3AwPGaImzhGPejFzJXcygee2OqagWw3zgeBCkseVwLBRD0UUY7HbjckU9SdjIoHRP1L0qYnNUOsE-ucmOzgvGkI3ZL5SNGMEVxWeNv_UrO0f_Mignw
Jenkins, H. (2012). Superpowered fans.Boom, 2(2), 22. doi:10.1525/boom.2012.2.2.22
Jenkins, H. (2014). Rethinking ‘Rethinking Convergence/Culture’.Cultural Studies, 28(2), 267-297. doi:10.1080/09502386.2013.801579
Jenkins, H., & American Council of Learned Societies. (2006A). Convergence culture: Where old and new media collide. New York: New York University Press. Retrieved from http://temple.summon.serialssolutions.com.libproxy.temple.edu/2.0.0/link/0/eLvHCXMwdV1LC8IwDA5uXrz5ZL5wf2Bjbd2j5-HwKggex7pWPIgH0f9v2j0cgx3T0pZCSPKlzRcARv3A69mEIkh4KUJZFPx-VERQiWaQBpEoRCypKXrtNDFpGYbaNgWap-nZ_eTcYUvsURIYNP9QwjfN6iywEqZbOmSXW6NnBA0yQ99k6CBRwAichDUZTyujR6oO7bibbApjpWsQZjBSrwXMU_0z3BRJKrdiylBLOGSna3r2qtV5nYXJBYtR2_W74wpsRPbKATcsMRjgMRNCMgQOJOEyRsTCGY6XESFrcIZ22QxPbWHyzxPswP68v2rf3OYH9vVuJQ
Jenkins, H., & American Council of Learned Societies. (2006B). Fans, bloggers, and gamers: Exploring participatory culture. New York: New York University Press. Retrieved fromhttp://temple.summon.serialssolutions.com.libproxy.temple.edu/2.0.0/link/0/eLvHCXMwdV09C8IwED2sLqKDouIn9ge0EpO2MbNYXAXBUXpJqoM4iP5_L9bPgnPghSz37i537wEIPmNhKSbMNReYMC1zJZmRyLmJcrSUOxs2zy3-mpi8FYbeNgVOp-n0PeT8pZZYkiR4VPNHizP3hxR74C2Es3RINzsimQKn8QmIaQtq1q0VtKFizx0YpsQQgY90y4Hyr8AnYP-QuR5yF6bpartchwXI_tlf2SMl_VS3REr0oJm5ufTz9bG_Zvrgo4oyYSUVgox4QOEiVnmspZBaG55IPoD-P7jh_6MR1D-tgDFUr5ebnbxedwdxwGux
Kaveny, R. (2010), Gen, slash, OT3s, and crossover- The varieties of fan fiction. In S. Abbott (Ed.), The cult TV book; From star trek to Dexter, new approaches to TV outside the box (pp.243-247). New York, Berkeley: Soft Skull Press
Kluft, D. (2016, Oct. 18). 10 Copyright cases every fanfiction writer should know about. [Blog Post]. Retrieved from http://www.trademarkandcopyrightlawblog.com/2016/10/10-copyright-cases-every-fan-fiction-writer-should-know-about/
Larsen, K., & Zubernis, L. S. (2012). Fandom at the crossroads: Celebration, shame and fan/producer relationships. Newcastle: Cambridge Scholars.
Link, B. (2010). Drawing a line in alternate universes: Exposing the inadequacies of the current four-factor fair use test through chanslash. Thomas Jefferson Law Review, 33(1), 139-180
Montano, N. H. (2013). Hero with a thousand copyright violations: Modern myth and an argument for universally transformative fan fiction. Northwestern Journal of Technology and Intellectual Property, 11, 689-707.
Schwabach, A. (2009). The Harry Potter lexicon and the world of fandom: Fan fiction, outsider works, and copyright. University of Pittsburgh Law Review, vol. 70, no. 3, pp. 387-434