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ETA: "Fandoms, Fan Fiction, and Fair Use: Transformative Use For Creators, Part 1" webinar video and transcript
Because I am on summer break for one more week, I had the chance to attend a Library Futures webinar on "Fandoms, Fan Fiction, and Fair Use: Transformative Use For Creators, Part 1." The webinar was presented by several brilliant women who work in legal fields related to transformative works. (I fangirled a little.) I took notes and want to share what I learned here for my fellow creators, archivists, and mods/admins. I winnowed out what I felt was most useful in the context of fanworks and specifically the Tolkien fandom. Please do feel free to share this post with others, and you do not need to ask me first. None of us benefit from withholding information out of a sense of obligation or politeness.
The webinar was recorded is supposed to be available at some point (including a transcript). I'll link it here when it is.
This session was predicated upon an upcoming Supreme Court case (oral arguments begin 12 October 2022) concerning the definition of fair use. Library Futures has submitted an amicus brief in this case. The case, in short: In the 1980s, Vanity Fair magazine acquired permission to use a photograph by Lynn Goldsmith of the musician Prince for an article. Andy Warhol heavily modified the photograph, and it was published alongside the article as planned. After Prince's death in 2016, Vanity Fair planned to do a tribute issue and discovered that Warhol had made multiple different versions of the modified photograph. They received permission from Warhol's estate to use one of the other versions as cover art on the magazine. The Andy Warhol Foundation for the Visual Arts ended up sued by Goldsmith on the claim that their use of the original photograph violated fair use.
The lower court initially ruled in favor of the Warhol Foundation, but on appeal at the Second Circuit Court, the verdict was in favor of Goldsmith, the photographer. The grounds for determining the adaptations were not fair use focused on the similarity of the images and the fact that it was obvious that Warhol's adaptations were clearly based off Goldsmith's photograph. If you know even a little bit about fair use, this is pretty sketch. The ruling also ascertained, somewhat bizarrely, that "Judges should not assume the role of art critic and seek to ascertain the intent behind or meaning of the works at issue" ... I say "somewhat bizarrely" because this begs the question, in a court case, of who should then do so? But I digress.
The concern is that, if the Supreme Court upholds the Second Circuit ruling, this could radically redefine fair use in a way that impacts libraries, educational institutions, and creators--all of whom depend heavily not just on fair use but a stable definition of fair use in conducting their work. It can also impact existing works of art that use other [copyrighted] texts in a way currently considered fair use. What is the fate of those works? Do they have to be removed from galleries and libraries? Destroyed?
Juliya Ziskina described upholding the Second Circuit decision as having a "chilling effect" on creators, libraries, and cultural institutions.
Juliya Ziskina, a fellow with Library Futures, covered fair use in some detail, not surprisingly given that (even in my own capacity as an archive owner) this is one of the most asked-about, anxiety-inducing, and misunderstood concepts that regularly arises in discussions of fandom.
On that note, a friendly reminder that, while many nations have a fair use concept or a legal concept similar to fair use, this refers particularly to U.S. law.
To begin, U.S. law holds that a copyright violation has not occurred if the use is determined to be fair use. Ziskina identified four major areas of consideration when determining fair use (Section 107 of the Copyright Act):
So what makes something transformative and therefore likely protected by fair use? There are two main considerations: Has the material taken from the original been transformed to add new expression or meaning? Or was value or new understandings added to the original through its modification into a new work?
Given the above, it is fairly easy to see why legal scholars have grown in their confidence that fanworks are transformative works and protected by fair use.
Rebecca Tushnet of Harvard Law (and part of the OTW's legal team) described current work to ensure that fan communities are included as government agencies seek to regulate not-new-but-bureaucracy-grinds-slowly materials available on the internet. This was a new and therefore fascinating perspective to me.
She noted, foremost, that creators are often overlooked in the process of developing regulations because they do not bring the money to the table that bigger, wealthier interests do. Therefore, in ensuring that creators' needs are considered in the drafting of regulations, there has been an effort to "justify fandom." Unfortunately, the ability to do something because it's harmless and fun is not enough, so the case is often made that fandom participation provides "intrinsic motivation to develop a bunch of skills": not just those that can be applied in a capitalistic sense but in terms of personal growth and understanding. Fanworks also provide a "really good way to work through stuff about yourself and the world."
I mean, we all knew this, and apparently regulatory agencies now do too, and it matters!
Another challenge, as lawmakers seek to regulate the internet, is that they are often tempted to treat all sites like Facebook, and this is not the case of course and is potentially devastating for online communities caught up in rules that make sense for Facebook and other large internet-based companies but not for smaller communities with a different approach. (I often think of this in the clamor to hold these companies accountable for misinformation and disinformation posted on their sites. I support this for companies, like Facebook and Twitter, with the financial and human resources to do so, but this could be potentially devastating for a site like the SWG, where we can possibly read, evaluate, and moderate every iota of text posted by our users.)
To end on a positive, Betsy Rosenblatt pointed out that growing familiarity with fandom, fanworks, and online communities, especially for noncommercial uses, is advantageous, as regulators definitely consider what is common practice for everyday people to engage in. And lots of people engage fannishly online in various senses of the word, including with fanworks.
Of course, the question at the heart of all of this: If the Supreme Court upholds the Second Circuit decision limiting the definition of fair use, what does that mean for fanworks and, more specifically, for archives? This question is why I attended this webinar in the first place.
Tushnet points out that it is hard to say until the opinion is published, as a reinterpretation of fair use could take lots of forms. Rosenblatt added (and monster shouters, please read this before you go using this webinar and my post as an excuse to engage in your own misinformation-mongering) that this is not the end of fanworks and fanwork archives. What it would mean is a change in what works are favored by law. And that's where the unpredictability comes in that everyone with a stake in this issue--creators, libraries, cultural institutions--fears.
However, it's worth saying too (since civics education in the U.S. is generally shite) that a ruling in favor of Goldsmith is not a foregone conclusion. The case is not heard until October. This entire section discusses the impact on fanworks and archives IF (and that's a big IF!) the Court upholds the Second Circuit's reinterpretation of fair use.
Tushnet provided two very actionable steps that each person reading this can do going forward.
First, tell people that fair use exists. (Assuming those people are in the U.S. Please don't continue to perpetuate this idea of fair use as an international law concept!) Fans tend to be so hand-shy from the early days of online fandom where takedown notices were a real fear that they sometimes hesitate to use works in a way that is completely within the bounds of fair use.
Secondly, make fanworks! Participate in fandom! As Tushnet noted, the "social ethos" does matter. In other words, if lots of people are doing a thing, to the extent that the thing has become a normal part of life, then that matters very much as courts consider how fair use should be evaluated.
She offered the example of the VCR. The VCR was also challenged in court, in a case that also made it to the Supreme Court, in a case that claimed the VCR enabled copyright violation by allowing viewers to make copies of TV shows. By the time the case made it to the Supreme Court, however, VCRs were such a part of normal life for many people that they were considered fair use, determined to facilitate a shift in time of viewing but nothing infringing.
Oldsters like me will remember well that "the shadows" were often invoked in discussing our fandom experiences, but it seems that for those who can safely be fannish and out in the open, that that is a good thing to do.
The second part of the webinar will take place on 1 September 2022 from 11:00-12:00 AM ET. Unfortunately, I am back in school by then and can't attend in real-time, and given the pressures of the early school year, can't even guarantee that I can watch a recording, take notes, and report out like I did here. I will try, but if someone else wants to take the baton, feel free.
Because I am on summer break for one more week, I had the chance to attend a Library Futures webinar on "Fandoms, Fan Fiction, and Fair Use: Transformative Use For Creators, Part 1." The webinar was presented by several brilliant women who work in legal fields related to transformative works. (I fangirled a little.) I took notes and want to share what I learned here for my fellow creators, archivists, and mods/admins. I winnowed out what I felt was most useful in the context of fanworks and specifically the Tolkien fandom. Please do feel free to share this post with others, and you do not need to ask me first. None of us benefit from withholding information out of a sense of obligation or politeness.
The webinar was recorded is supposed to be available at some point (including a transcript). I'll link it here when it is.
The Supreme Court Case at Hand
This session was predicated upon an upcoming Supreme Court case (oral arguments begin 12 October 2022) concerning the definition of fair use. Library Futures has submitted an amicus brief in this case. The case, in short: In the 1980s, Vanity Fair magazine acquired permission to use a photograph by Lynn Goldsmith of the musician Prince for an article. Andy Warhol heavily modified the photograph, and it was published alongside the article as planned. After Prince's death in 2016, Vanity Fair planned to do a tribute issue and discovered that Warhol had made multiple different versions of the modified photograph. They received permission from Warhol's estate to use one of the other versions as cover art on the magazine. The Andy Warhol Foundation for the Visual Arts ended up sued by Goldsmith on the claim that their use of the original photograph violated fair use.
The lower court initially ruled in favor of the Warhol Foundation, but on appeal at the Second Circuit Court, the verdict was in favor of Goldsmith, the photographer. The grounds for determining the adaptations were not fair use focused on the similarity of the images and the fact that it was obvious that Warhol's adaptations were clearly based off Goldsmith's photograph. If you know even a little bit about fair use, this is pretty sketch. The ruling also ascertained, somewhat bizarrely, that "Judges should not assume the role of art critic and seek to ascertain the intent behind or meaning of the works at issue" ... I say "somewhat bizarrely" because this begs the question, in a court case, of who should then do so? But I digress.
The concern is that, if the Supreme Court upholds the Second Circuit ruling, this could radically redefine fair use in a way that impacts libraries, educational institutions, and creators--all of whom depend heavily not just on fair use but a stable definition of fair use in conducting their work. It can also impact existing works of art that use other [copyrighted] texts in a way currently considered fair use. What is the fate of those works? Do they have to be removed from galleries and libraries? Destroyed?
Juliya Ziskina described upholding the Second Circuit decision as having a "chilling effect" on creators, libraries, and cultural institutions.
What Is Fair Use?
Juliya Ziskina, a fellow with Library Futures, covered fair use in some detail, not surprisingly given that (even in my own capacity as an archive owner) this is one of the most asked-about, anxiety-inducing, and misunderstood concepts that regularly arises in discussions of fandom.
On that note, a friendly reminder that, while many nations have a fair use concept or a legal concept similar to fair use, this refers particularly to U.S. law.
To begin, U.S. law holds that a copyright violation has not occurred if the use is determined to be fair use. Ziskina identified four major areas of consideration when determining fair use (Section 107 of the Copyright Act):
- Purpose and character of the use: This includes considerations of whether the work is for- on non-profit and whether the work is considered transformative. Transformativeness is not required for fair use but is weighed heavily.
- Nature of the work used. Is it for entertainment? Informative? Is it published or unpublished?
- Amount of the work used. Contrary to popular belief, there is no set amount that is acceptable or unacceptable to use. As Ziskina pointed out, there have been uses determined to be fair use where the entire work was used. (Author's Guild v. HathiTrust [2014] is one such case involving scans of entire books.) The "10% rule" that was often bandied about fandom in the old days (you could use up to 10% of a copyrighted work under fair use) is a myth.
- Effect of the use on the value of or market for the original work.
So what makes something transformative and therefore likely protected by fair use? There are two main considerations: Has the material taken from the original been transformed to add new expression or meaning? Or was value or new understandings added to the original through its modification into a new work?
Given the above, it is fairly easy to see why legal scholars have grown in their confidence that fanworks are transformative works and protected by fair use.
Fan Communities, Law, and Regulation
Rebecca Tushnet of Harvard Law (and part of the OTW's legal team) described current work to ensure that fan communities are included as government agencies seek to regulate not-new-but-bureaucracy-grinds-slowly materials available on the internet. This was a new and therefore fascinating perspective to me.
She noted, foremost, that creators are often overlooked in the process of developing regulations because they do not bring the money to the table that bigger, wealthier interests do. Therefore, in ensuring that creators' needs are considered in the drafting of regulations, there has been an effort to "justify fandom." Unfortunately, the ability to do something because it's harmless and fun is not enough, so the case is often made that fandom participation provides "intrinsic motivation to develop a bunch of skills": not just those that can be applied in a capitalistic sense but in terms of personal growth and understanding. Fanworks also provide a "really good way to work through stuff about yourself and the world."
I mean, we all knew this, and apparently regulatory agencies now do too, and it matters!
Another challenge, as lawmakers seek to regulate the internet, is that they are often tempted to treat all sites like Facebook, and this is not the case of course and is potentially devastating for online communities caught up in rules that make sense for Facebook and other large internet-based companies but not for smaller communities with a different approach. (I often think of this in the clamor to hold these companies accountable for misinformation and disinformation posted on their sites. I support this for companies, like Facebook and Twitter, with the financial and human resources to do so, but this could be potentially devastating for a site like the SWG, where we can possibly read, evaluate, and moderate every iota of text posted by our users.)
To end on a positive, Betsy Rosenblatt pointed out that growing familiarity with fandom, fanworks, and online communities, especially for noncommercial uses, is advantageous, as regulators definitely consider what is common practice for everyday people to engage in. And lots of people engage fannishly online in various senses of the word, including with fanworks.
So What Does This Mean for Fanworks?
Of course, the question at the heart of all of this: If the Supreme Court upholds the Second Circuit decision limiting the definition of fair use, what does that mean for fanworks and, more specifically, for archives? This question is why I attended this webinar in the first place.
Tushnet points out that it is hard to say until the opinion is published, as a reinterpretation of fair use could take lots of forms. Rosenblatt added (and monster shouters, please read this before you go using this webinar and my post as an excuse to engage in your own misinformation-mongering) that this is not the end of fanworks and fanwork archives. What it would mean is a change in what works are favored by law. And that's where the unpredictability comes in that everyone with a stake in this issue--creators, libraries, cultural institutions--fears.
However, it's worth saying too (since civics education in the U.S. is generally shite) that a ruling in favor of Goldsmith is not a foregone conclusion. The case is not heard until October. This entire section discusses the impact on fanworks and archives IF (and that's a big IF!) the Court upholds the Second Circuit's reinterpretation of fair use.
So What Can WE the People Do?
Tushnet provided two very actionable steps that each person reading this can do going forward.
First, tell people that fair use exists. (Assuming those people are in the U.S. Please don't continue to perpetuate this idea of fair use as an international law concept!) Fans tend to be so hand-shy from the early days of online fandom where takedown notices were a real fear that they sometimes hesitate to use works in a way that is completely within the bounds of fair use.
Secondly, make fanworks! Participate in fandom! As Tushnet noted, the "social ethos" does matter. In other words, if lots of people are doing a thing, to the extent that the thing has become a normal part of life, then that matters very much as courts consider how fair use should be evaluated.
She offered the example of the VCR. The VCR was also challenged in court, in a case that also made it to the Supreme Court, in a case that claimed the VCR enabled copyright violation by allowing viewers to make copies of TV shows. By the time the case made it to the Supreme Court, however, VCRs were such a part of normal life for many people that they were considered fair use, determined to facilitate a shift in time of viewing but nothing infringing.
Oldsters like me will remember well that "the shadows" were often invoked in discussing our fandom experiences, but it seems that for those who can safely be fannish and out in the open, that that is a good thing to do.
The second part of the webinar will take place on 1 September 2022 from 11:00-12:00 AM ET. Unfortunately, I am back in school by then and can't attend in real-time, and given the pressures of the early school year, can't even guarantee that I can watch a recording, take notes, and report out like I did here. I will try, but if someone else wants to take the baton, feel free.
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