The Learned Fangirl

On Gamine Expedition, Sara Grimes writes about the Harry Potter lawsuit differently than I’ve seen before (or the economic production /fan labor issues that I’ve written about) by focusing on how traditional intellectual property analysis ignores the impact of copyright on children:

What troubles me about the Harry Potter lawsuit is that … the object under dispute is nonetheless children’s culture. I doubt anyone, especially J.K. Rowling, would ever go after a child for appropriating her text…though I’m not so sure that this would necessarily extend to the unlikely scenario of a child attempting to publish these appropriations for profit.

But the fact remains that these discussions, lawsuits, and (potential) copyright expansions are taking place within the realm of kids’ culture, which will surely have an impact on how this culture develops, what space is allowed for UGC in the future, and how kids’ perceive what’s allowed and not allowed when it comes to branded characters and stories. I doubt there are many Harry Potter fans - of any age - who haven’t heard by now that if you write fan fiction about Harry Potter, you could get sued, or at least make J.K. Rowling very upset with you.

Pushing copyright norms onto kids has now become our norm — see the Word Intellectual Property Organization’s kids copyright guide (PDF), Copyright Kids, the now-defunct Canadian “Captain Copyright”, and MPAA-sponsored Copyright Badges for scouts.

I have heard multiple lawyers publicly state that they knew they were sending cease-and-desist letters to eight-year olds — and they believed this was needed to serve their clients. These actions are taken despite the fact that most of the fanworks created by kids are done with extreme reverence to the source material. Yet this reverence plays no role in the determination of “fair use.” Perhaps adults should “know better,” but the play of children should not be subsumed within our concern about copyright.

The most popular song for birthdays, “Happy Birthday” and hence part of the life experience for the vast majority of English-speaking children, is either copyrighted or no one has been capable of taking on its corporate overlord to prove its public domain status. Henry Jenkins has written about the previous copyright debates involving Harry Potter fan culture.

Sara continues:

I … think that when we’re dealing with kids, this issue of appropriation and fan culture becomes even more complex. … Examples of how kids’ themselves incorporate media characters into their everyday lives include everything from role-playing Spongebob and Patrick, to drawing pictures of Pikachu.

And … creative appropriation [is studied] as an important way that kids make sense of the media presence in their lives, as well as engage with the larger culture, challenge dominant ideologies, co-produce a shared culture with other children, etc. …

When children create and play, they traditionally have not needed to think about the starting point of their creativity — whether it is jump rope rhymes (remember Miss Mary Mack?) or where the backstory of the Knights of the whatever came from. As I said, “Reworking or redoing the culturally significant works of others has been an important part of children’s play for forever; after all, what else are nursery rhymes? Children still sing a song about the Black Plague!”

But now that so much of children’s lives are branded, intellectual property plays a large role in shaping the limits of child’s play. While there are many works that technically aren’t copyrighted, how many children would know about non-Disney versions of Snow White, Cinderella, Peter Pan, and the Little Mermaid (spoiler: in the original, she becomes a helpful ghost) ? Or more disturbingly, about cultural significant figures (not just “Disney princesses”!) historical figure Pocahontas and possibly historical person Mulan? Has anyone been to a U.S. zoo where entire species of animal have not been referred to by children and their parents as simba, timon, pumbaa?

Sara concludes:

I also think that legal systems (such as copyright) can be and are increasingly used to limit, contain, rationalize and commercialize kids’ culture. And this happens in a variety of ways - through the elimination of opportunities to generate content, or by placing restrictions on what and how that content is generated (limiting freedom of expression and undermining children’s agency); through corporate claims of IP ownership over child-generated content and submissions; and by teaching kids from a very young age a corporate reinterpretation of copyright law…ignoring fair use and obscuring the principles upon which copyright was based in the first place.

As these practices become the industry standard (and in fact begin to be programmed right into the design of online games and environments), the space for children to appropriate, manipulate, subvert, make sense of and have some sense of ownership over their shared culture becomes increasingly scarce, increasingly threatened.

With an increased focus by many media companies on online games for children, the issues Sarah raises become even more important. Should ten-year olds be expected to read and understand terms of service, and not break down in tears when their creation is changed or deleted?

As Izzy Neis states

it should never be a ‘no duh’ moment when you (the user) are made to feel empowerment because you built something, then were lead to believe you owned it (in whatever sense - people need to be clear more often), and only discover later on that because of the playground you were in… you have no real rights (you only own it when we say that you own it, you’re in our world now grandma. Step out of line and we crush-a you)…

My favorite of all is Disney’s TOS… they do say … that anything you ever did upon viewing/logging in/participating/breathing at their site/world/existence is their’s lock, stock, and barrel - from your name, to the way in which you may misspell the (teh), etc, etc, etc.

The unclear limits and power dynamics of intellectual property can impact anyone. But should our intellectual property protection serve as a often-highly effective limit to child’s play?

In the season finale of Grey’s Anatomy, Dr. Miranda Bailey breaks out with her mad Star Wars knowledge, both movie canon and the books, prompted by a patient referring to Han Solo. She then turns to her co-workers and declares “What, I’m a fan of sci-fi!” Why should she feel the need to defend her fannishness? Is it because she doesn’t fit the stereotype of who a fan should be — by being an African-American woman?

The possibility of female sci-fi fans seems so obscure to some that Megan McArdle has a blog post on the Atlantic.com about explaining science fiction to women.

She states that

A love for feminine frippery can be, and frequently already is, paired with a love of laser guns.

… talk about it as a fairy tale–only a fairy tale with science instead of magic. The basic emotional space it taps is the same. You might also try to ease her into something with a little more human emotion and a little less space opera.

In response, Iyla Somin at the Volokh Conspiracy concludes that a large part of the explanation is that such female science fiction fans just don’t exist — after all, if there was a market, of course it would be met fully:

If there were a large unment demand for feminist SF or other types of science fiction that may be of special interest to women, publishers and writers would have a strong incentive to meet it. The portrayal of women in science fiction has been debated for at least forty years, and publishers are certainly aware of the issue, and would act on it if they smelled profit. The underlying reality, I think, is that SF has less appeal to women than to men independently of the ideology of the writers and the way they portray female characters.

There are two interrelated assumptions that are made. First, that if female fans require non-misogyny in the fandom that this is the same as expecting these works to be feminist. This is a highly inaccurate assumption; while there are few action movies that would be considered to be feminist, there is a large difference between the non-misogyny of the first The Transporter and Batman Beyond (both movies with barely a female presence, yet with a large female fan following) and the super-sexist Bad Boys. The second assumption is much more insidious — that the only people seeking non-biased materials are those who would have the bias against them. I’d like to think that men would also like to not have their fandom with a side of misogyny.

I also laugh in the face of the idea that all female sci-fi/fantasy needs are being met. For example, if we judged anime based on what is seen on American television it would be as if an entire huge genre, shoujo (shojo), doesn’t even exist (invisibility!) — and according to the above argument, it is because no one would watch. The last shojo anime brought over from Japan, Cardcaptor Sakura, was a complete failure on television — not due to gender-based reasons such as focusing on relationships and costumes or having a large number of female characters, but because the show was plot-ignoringly edited to Cardcaptors.

Yet according to a 2001article, Sailor Moon graphic novels outsold Marvel’s Ultimate X-Men. There is a huge untapped market for this stuff! In response to market forces, some comic bookstores now are selling shojo books and related merch. And lest one think that it is only girls and women interested in these types of “girly” comics, the fact is we don’t know who could potentially be interested because of the ghettoizing of these materials as only “for girls”, often with the signifier of pink; leaving the “real” comics to males.

One of the writers for Sequential Tart, a online zine about comics from the perspective of women, Marissa Sammy writes about the frequent invisibility of women of color fans in a post called Becoming Visible: On Being a Woman of Colour in Fandom

Fandom, by and large, tends to be a white space. And people of colour (PoC) are, by and large, good at negotiating white space. We have to be. We speak the lingo and know the canon, and we do such a good job blending in online that we often … disappear.

I’m tired of being a visible minority in real life and an invisible one in fandom and online; I’m through with accepting the perception that I am never truly the Default.

I’m here. And so are you. Let’s make them see us.

The issue of invisibility for fans of color and women and women of color is of course not limited to science fiction and comics; in Keidra’s Bitch Magazine (and in the book!) article, Sister, Outsider, Headbanger, she writes about the difficulties and joys of being a African-American female metal fan:

if metal fandom is a great big family, I sometimes felt like a second cousin once removed. Though I was drawn to the outsider appeal of the music in the first place, it was difficult for me to forget my double outsider status at concerts, where guys would gawk and point at me and my metalhead clique as if we were Martians instead of black girls and we could count the number of black faces on one hand. But once the lights went down and the band came onstage, we were all headbanging and moshing and howling the words to the songs. The music took over, and we could all share that universal bond of loving the music, if only for a few hours.

Fans that are considered to be “different” or not the right type, can face anything from being leded as the “Unlikeliest Fans” in the case of yeshiva (Jewish religious school) fans of newer-metal band Disturbed — to being beaten for being Mexican emos.

Women, people of color, and especially women of color often need to wade through the negative portrayals of those like them or direct hostility to them to get to the tasty meat of fandom. And for some, that level of active filtering just isn’t worth it.

Note: I realize that there are a myriad of other aspects of invisibility in fandom, such as sexuality, disability, and age. We are planning to have at least two more posts in this series, focusing on creators and critics.

Bless his geeky heart, Uncle Trent is at it again. He’s released download statistics for The Slip on Google Earth. Since my job is about using “emerging media” to engage an audience , and I am also a slobbering NIN fan, the whole approach of using freeware and Open Source (google, flickr, YouTube, blogger, you name it) to communicate with fans is really a case study for me. It’s working, and it’s something for organizations, not just musicians to watch closely. Not to mention this goes back to understanding and trusting your audience. Knowing that NIN fans are notoriously geeky tech savvy and trusting them enough to release this information in a format they’d relate to.

Check out Rebecca Tushnet, User-Generated Discontent: Transformation in Practice, 31 COLUM. J.L. & ARTS 110 (2008). [translation: it's in the Columbia Journal of Law and the Arts]

She argues that the non-commercial nature of fan works makes them transformative, an important element in determining whether a use of a copyrighted work was fair use. (She is also the author of the first comprehensive law review article on fanworks, focusing on fan-fiction.)

Unauthorized, unplanned creativity has immense value even at the most instrumental level: beginning with popular sources gives young creators a place to start, heightens their enthusiasm for writing, and provides them with an eager and helpful audience. The social value of hundreds of thousands of unauthorized Harry Potter-inspired stories rests not merely in the stories’ critical potential in challenging the sexual, racial and political assumptions of the original, but also in the skills that fans learn while writing, editing, and discussing them. … The transformation here is mainly of the creators and the audiences, and it should be recognized as a legitimate type of transformation.

Using a work as a building block for an argument, or an expression of the creator’s imagination, should be understood as a transformative purpose, in contrast to consuming a work for its entertainment value.

Noncommercial works display systematic differences in subject matter, aesthetics, accessibility, and other creative features. If we value expressive diversity, as copyright doctrine routinely suggests, we should not attempt to assimilate everything into the profit-seeking sphere, even if it were possible to do so.

My response: Continuing to view fanworks made for the love or the lols in the same light as commercial works doesn’t make sense, considering the vast difference in purpose and in effect on potential consumers. Parody is already considered to be transformative, so expanding the definition to also include the myriad of fanworks made to share not to profit makes complete sense to me. And considering that many fanworks are based on works with cultural resonance, fandom-based creativity often serves as both a way to turn a mirror on cultural phenomena (like parody) and as a way to continue creativity (the mirror on the mirror).

But then again, I view fair use as a flexible tool for expanding cultural use of copyrighted material, especially our present multi-generation copyright terms.

In several recent blog and news stories (including my favorite headline of the bunch: The Associated Press plays role of Metallica in Napster-esque war with bloggers), the AP’s stated fair use policy for bloggers is discussed.

And what is the limits of AP’s version of fair use? If a blogger wants to use more than 5 words, they are expected to pay:

• 5-25 words: $12.50
• 26-50 words: $17.50
• 51-100 words: $25.00
• 101-250 words: $50.00
• 251 words and up: $100.00

So what are some of the problems with this plan?

First, the logistics. While the AP is claiming copyright in every word that they have in every article that isn’t accurate. How could the quoted words of McCain or Obama be copyrighted by the AP, for example? What if quotes could be from more than one news source? This policy discourages bloggers to link back to AP stories. (The head of the Media Bloggers Association claims that the whole situation was blown out of proportion by bloggers).

Second, the limits of fair use are fluid on purpose, allowing for use of copyrighted works ranging from quoting poetry to photocopying a book chapter to including incidental music in a documentary. Perhaps if the AP created factors for when licensing was required similar to the copyright fair use factors then this licensing plan would not be so derided (example: charging a fee only if the blog has ads).

Third, while only online activity is discussed by both the AP and critics, copyright law is the same in real life as it is online. What is different are the social norms that have been created differently online.

The AP argues that (from a NY Times article):

“Cutting and pasting a lot of content into a blog is not what we want to see,” he said. “It is more consistent with the spirit of the Internet to link to content so people can read the whole thing in context.”

Scott Rosenberg writes:

The “spirit of the Internet” has always been about linking and excerpting. Actually, the “spirit of the Internet” is probably even more about wholesale copying.

Bloggers range in their approaches to linking, quoting, and copying. Perhaps there should be a normative standard for bloggers. But I can’t imagine that through a “best practices” model or through following a more journalistic standard that fair use on blogs will be judged to be no more than four words.

And as a fourth and final point, as stated by Robert Cringley:

“There’s precious little original journalism in blogs; 99% of bloggers are repeaters, not reporters…. Blogs need people who know how to do reporting; the AP needs the kind of viral distribution only the blogosphere can bring. We need to figure out a way we can all get along here, lest we all perish in the copyright wars.”

Or as John Abell states more bluntly on Wired,

The bifurcation of publishing and news-gathering is disrupting the journalism eco-system as never before. …Here is the problem: if nobody pays for news –- or rather, if the people that gather the news aren’t paid -– then there is no business model for journalism.

In a world where physical newspapers are shrinking and staffs are cut, it makes sense that the AP would want their work to be valued. But this is the wrong way to go about it! As Jennifer Leggio states, the snowball / backlash effect could further damage the print journalism industry:

the situation reeks of the same type of censorship concerns debated during the Metallica vs. Napster fan law suit several years back. While Metallica (and the other musical acts behind the suit) likely never intended to create the legal monster that it did, the music industry was never the same. Music sharing permanently moved to a paid model. And, well, Metallica lost a lot of fans.

Lesson: Don’t promote self-ownage through abrasive use of copyright.