The Organization for Transformative Works and Its Bid to Protect Fan Fiction: Are Its Proposed Changes to Copyright Law, Creating Immunity for Suits Against FanFic, a Good Idea?

By JULIE HILDEN
Monday, Jan. 21, 2008

The intriguing new group, The Organization for Transformative Works (OTW), is proposing some interesting changes to copyright law that would strengthen protections for "fan fiction." ("Fan fiction" is created when those who love an original work -- say, "Star Trek," for example -- incorporate its characters into their own writing or other creative work.)

The OTW "envisions a future in which all fannish works are recognized as legal and transformative and are accepted as a legitimate creative activity." Interestingly, the group includes Georgetown law professor Rebecca Tushnet, who specializes in intellectual property law and has herself represented and advised some fan fiction websites as an attorney. Tushnet also writes fan fiction herself, as do a number of other OTW members, as their bios describe.

In this column, I'll discuss whether the legal future toward which the group is working would be a desirable one. Currently, any author has the option to sue fans for copyright violations based on fan fiction. Nonethelesss, many make very clear they will never exercise that option, out of respect and affection for their fans. But should authors legally lose that option - as the OTW suggests?

Challenges to the Original Author Copyright Model Are on the Rise

Our Constitution's Copyright Clause has always seen original authors as far more important than derivative users. However, especially in light of the Internet's influence, many have taken issue with that hierachy - even to the extreme of ignoring original authors' interests.

For instance, in a prior column, I challenged CIS Director Jennifer Granick's claim in a piece for Wired that the "overwhelming majority of creators" would benefit if more works remained in the public domain, or were shifted into it. This point seemed wrong to me for two reasons: First, there are still many, many creators whose work is original, and who would never need to use public-domain works in a way that would conceivably lead to copyright litigation. They thus would not benefit at all if their works or those of others fell into the public domain.

Second, not only does the Copyright Clause in fact privilege these creators over derivative users, but that hierachy may be the right one, from the standpoint of policy: Original work may actually be more worthy, in that it brings something genuinely fresh and innovative into the world, representing a creative leap and not just an incremental extension. If so, then original creators may deserve greater protection because of the greater value their works - especially the greatest among them -- possess. Thus, it's not just a numbers game where the majority rules, as Granick implicitly suggests. Instead, the interests of a small set of original creators may arguably trump those of a larger set of derivative users, depending on how much more heavily we value works that are wholly original (or at least close enough to that status not to be the basis for infringement lawsuits).

The second point, of course, applies to the OTW's agenda as well. Does fan fiction deserve to share the same respect as original work, for copyright purposes? The OTW's proposal suggests so. Recognizing fan fiction as "legal and transformative" would put it on a par at least with "fair uses" of original works, and perhaps also with the works themselves. And the recognition of fan fiction as "legitimate creative activity" seems to put it on, or close to, the level of original works. But is that the fair or right level for fan fiction to occupy?

The Practical Impact If OTW's Proposal Becomes Law

Beyond these theoretical considerations, moreover, it's important to consider the possible real-world impact of the OTW's proposal. Importantly, the OTW is not asking for a fixed, low royalty rate for fan fiction; rather, it is trying to destroy original authors' ability to both silence fan fiction and require royalties for it. Thus, the OTW has bypassed the more moderate solution of a low, fixed, statutorily-mandated royalty rate for fan fiction that effectively sets that rate at zero.

Does that matter? Absolutely. Even those who strongly value fan fiction may worry about maintaining authors' incentives to create the original works that feed it. Moroever, very modest royalties from fan fiction could make a major difference to mid-list authors - the very kind of authors fans often enjoy discovering and promoting.

A first-time novelist might earn an advance of $20,000 to $50,000 for a novel that took three years to write. Unless the novel breaks out, royalties are very unlikely, and even the sale of the author's second novelwill probably depend on that novel's already being completed (unless the author is lucky enough to benefit from a two-book deal, very rare for a first-time novelists). Thus, the author may well face the prospect of another three years or so of writing with no guarantee of publication. Could getting $100 each from 200 fans who want a license to write fan fiction based on the first novel, for a total of an extra $20,000 make a difference to the newbie author? Absolutely.

Indeed, the economics here even set up the exciting possibility of groups of fans as the sponsors and, in effect, producers of creative work. (See my previous column on the possibility of viewer-financed "cult shows" for more detail on this possibility.) Would-be first-time authors could pitch ideas to groups of fans and receive funding. Meanwhile, those who were funded could become part of an online writers' group to which fans could have special access to receive writing advice or have questions answered. In other words, the Internet provides a possible forum to resurrect a patronage system in which a group of fans collectively support a writer or indie filmmaker working in digital video, just as patrons such as kings and emperors once did for musicians, writers,and painters.

Yet all these options depend in part on authors' retaining some control over the rights to their work. The OTW's proposal is a complete abrogation of control with no compensation for taking away rights, or any substitution of rights (for instance, switching a right to refuse to license fan fiction with a right to charge a low, statutorily-mandated royalty.) In this sense, it is the most extreme proposal possible.

Authors May Suffer From a Loss of Control, as Well as a Loss of Money

There's another way that authors could also suffer; fans' work might devalue or compete in the market with their own, or their designated successors' work.

Sometimes an author may tap a successor to carry on his or her work as a kind of legitimate heir, who can use the author's name and blessing as a sort of branding mechanism and seal of approval, even after the author's death. If the OTW's proposal were made law, then this could still occur, but unwanted successors could legally arise too - even if the author would have detested the successor and hated the direction in which his or her work was taken.

If any successor's work fell into the category of parody, it would be protecteed even under our current system, under the "fair use" exception to copyright and the Supreme Court decision Campbell v. Acuff-Rose. There, Justice Souter, in a strongly pro-free-speech decision, wrote that a parody of a work is immune from liability under copyright law, due to the fair use exception, even if it destroys the market for the original, as its very purpose is often to "garrotte" the original. Parodies' nature is to mock, undermine, devastate, and destroy.

Yet many unauthorized follow-up works might simply take characters and the story in a different direction, one that might be antithetical to the original. While by doing so, they might undermine the original by destroying its market, they won't necessarily fall within the "fair use" exception for parody. Thus, they wouldn't be protected under our current system, but they might under OTW's system.

Granted, the OTW could counter that these works wouldn't be "fan" fiction at all, but rather something one might call "hate fiction," designed to destroy the original. Yet who is to say that destruction isn't a twisted form of fandom? In "The Anxiety of Influence," Harold Bloom described the Oedipal struggle by which a poet imaginatively "slays" his or her precursors, even as he or she is also profoundly influenced by them.

The OTW might also claim that this couldn't occur, as true fans of the original author would never read fiction designed to destroy or undermine his intention. But is this really true? Creators disappoint their fans all the time, and fans punish them for it (perhaps in their own Oedipal backlash). Sometimes, fans' only choice is to read on, or refuse to. But what if there were other alternatives - such as a next Harry Potter book for Christian Right readers where Dumbledore is resurrected, decides he isn't gay after all, and begins to condemn gay people? This might be a kind of fan fiction for the Christian Right, but a kind that J.K. Rowling, who revealed Dumbledore is gay, would despise.

Currently, issues of market-destruction are limited to books and music, but DVD and animation advances may bring them into the movie world as well. Thus, the OTW and its supporters may want to think carefully before potentially making their beloved creators more vulnerable, by increasing the capacity of all fans (hostile or friendly) to appropriate and build upon their work. Not every world needs to be collectively created, and some may arguably need preservation from outside onslaughts.

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Julie Hilden, who graduated from Yale Law School, practiced First Amendment law at the D.C. law firm of Williams & Connolly from 1996-99. Hilden is also a novelist. In reviewing Hilden's novel, 3, Kirkus Reviews praised Hilden's "rather uncanny abilities," and Counterpunch called it "a must read.... a work of art." Hilden's website, www.juliehilden.com, includes free MP3 and text downloads of the novel's first chapter.

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