(This is my third post on Henry Jenkins’s new book Convergence Culture; the first two posts are here and here; and the Wall Street Journal had a terrific article on fan fiction on Saturday (here ($)).)
Jenkins pushes (p.190) for a reformulation of fair use “to legitimate grassroots, not-for-profit circulation of critical essays, and stories that comment on the content of mass media.” But he clearly wants more, as he recognizes that most fans aren’t that interested in producing work that the law is most likely to protect (parody or critical commentary of the sort seen in The Wind Done Gone), but who want instead to write about Ron and Hermione kissing. That said, Jenkins believes that copyright holders should be protected from commercial competitors.
I am most interested in Jenkins’s claim about the relationship between IP and authoritative status.
Jenkins asserts that IP holders attempt to use IP rights to control authoritativeness. I think that is probably right, but authoritativeness is much more organically tied to the author herself. So I don’t think that Jenkins provides any examples of fans hijacking the canon from the author. This is almost a question of market share. In a world without fan fiction, Rowling had a 100% share in the Harry Potter creation market. With fan fiction, her share is smaller, but I suspect that it is still in the high 90s. This isn’t about sheer number of words written—fans could quickly surpass an original author—but more about reading share and mindshare. Every fan will read HP VII, but what fraction of those have read whatever is the leading non-official Potter text?
IP matters here in the sense that if commercial competitors could write Harry Potter stories, a non-Rowlings text might do well. A commercial house would engage a professional writer and could put its marketing muscle behind the story. That would look a lot like Lucasfilm with its sixty best sellers, except that we would have more competitors. But I don’t think that copyright is driving control over the canon against fans. The fan texts would have to achieve greater mindshare to become canonical.
Where does that put us for fair use? It is hard to know whether fan fiction competes with the official stories, and I think that Harry Potter and Star Wars are interesting contrasts. The Potter canon is quite small, and each story from Rowling is eagerly awaited (though I don’t know how the side books sold). Those writing Potter fan fiction will be first in line to buy HP VII. But, to an outsider at least, the Stars Wars Extended Universe looks pretty large. As soon as you aren’t going to read everything, then it is less clear to me that it matters whether you are reading official or unofficial stories.
We can generalize that slightly and context matters. When we don’t observe licensing to extend the story, it seems unlikely that fan fiction competes with the authoritative texts or with licensing opportunities in adjacent markets. So Rowling licenses for movies, but she isn’t building—yet—the Harry Potter Extended Universe. Lucasfilm has done exactly that, and, in that context, fan fiction may compete with officially licensed versions and represents a missed licensing opportunity.
I think that that is consistent with how the Supreme Court approached this issue in Campbell. In Campbell, 2 Live Crew wanted to produce a version of Roy Orbison’s Pretty Woman and sought to license rights. When the license was declined, they went ahead anyway with their parody/rap version, Big Hairy Woman. In considering the effect of that use on the market for the original work, the Court ordered the lower court in reconsidering the case to consider the effect of 2 Live Crew’s use on the market for a licensed—authorized—rap version of the original song. (Note also that I think Rebecca Tushnet reads Campbell differently in her original work on fan fiction.) So the greater the extent to which we see licensing and contractual delegation to new authors to create new stories, the more we might think that fan fiction competes with those stories. If we don’t see this sort of licensing, it seems much less likely that fan fiction competes with the authoritative texts.
That leaves a couple of issues. As Jenkins describes it (p.150), Lucasfilm has been most aggressive in trying to block erotic stories involving the Star Wars characters. (I haven’t gone looking but my guess is that if we permute and combine Han/Leia/Luke/Chewie, we can come up with a full-range of variations.) This is like parody in the sense that we think that it is outside of what the author would be willing to agree to, but probably unlike parody as it may not operate as a commentary on the original text. As the parody case makes clear, copyright has been willing to protect as fair use the use that wouldn’t be licensed voluntarily.
Finally, even if we extend fair-use out to protect non-parody fan fiction, we aren’t likely to extend that protection to websites hosting the content. This is the Michigan Document Services case, where, in a very divided decision to be sure, the Sixth Circuit concluded that a Kinkos-like course-pack service could not claim fair use, even if the students could have done so had they stood in front of the copying machine and made their own copies. So we will need to distinguish the fan from the host, and of course it is often the hosts that will be taking in revenues. In that connection, we might usefully draw the following line. The Sugar Quill runs ad provided by Google. In contrast, the online version of the Daily Prophet is organized as a 501(c)(3) organization, takes donations and doesn’t appear to run ads (at least not real ones: there is a plug for the Hover 6000, the season’s hottest new broom). Through its advertising programs, Google has made it simple for any site with meaningful traffic to turn those eyeballs into dollars.
And were that not enough, beyond fair use, there are important issues regarding how the Internet service provider safe harbors (set out in 17 USC 512) would apply to the hosting services. I think that that is tricky, though again, displaying advertising in connection with a display of the fan fiction may forfeit the safe harbor. (On that compare, Fred von Lohmann’s analysis of YouTube’s copyright position (and also note how that is evolving contractually (see today’s Wall Street Journal, free here)).)