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I’m at day 2 of the Cultural Environmentalism at Ten conference. The first speaker this morning is Rebecca Tushnet. My not-for-attribution notes follow.

I found fandom in 1987. I also invented it in 1980 in my room. Every fan invents fandom, just like everyone falls in love for the first time. How do we reconcile this with an IP system that cares whether you’re the first or the second person to recite a poem? Let’s look at patterns and processes of creativity as they’re actually experienced (by wealthy, white internet users). Let’s look at their practices to see how people understand the nature of authorship.

Example to structure the discussion: Razzle Dazzle (from Chicago), but a music video made of old Star Trek clips.

What did they do? The thing that made you laugh was the selection and arrangement of elements the videomakers didn’t create. Within the fandom community, people like this shed new light on preexisting texts. It’s a non-transformative use of the song, though. This is a slightly different way of looking at authorship (the credits at the beginning credited Richard Gere and the videomakers). The romantic author conquers virgin territory, makes something from nothing — male. The romance author is elaborating, embroidering — female. It’s a binary, and that’s troublesome. Romance authorship is about the execution, like any genre work. “Originality” means executing in a new way.

Media fandom has aesthetics — several competing aesthetics — that accept an author function that doesn’t require any concept of conventional ownership of the resulting product. Fans attribute, fans don’t reuse each other’s products, distinguishing between “within” and “without”. What about reusing somebody else’s Mary Sue? The norm is seeking permission. For video (“vidding”), it’s even stronger — don’t reuse someone else’s editing at all.

Why treat inward differently from outward? First, simple selfishness.

Why is this OK? Experiences reach out and grab us. We connect to media and they become part of us, and they’re designed to do so. Thus, it’s fair to engage with a public text in this way. Second, “it’s noncommercial”. This is problematic, since it cements a lower status. But this status helps form community, with a common enemy. Also, it establishes norms.

What are the obligations? Not permission from outside. No reuse inside. The other one is attribution. It can be necessarily implied, as with a Star Trek vid. There are attribution norms in lots of places where control doesn’t happen — here, but also academia. They can be quite context-sensitive, too, and there are formal guidelines for certain fields (e.g. AHA guidelines for history). Also, french chefs.

And importantly, the Copyright Office orphan works proposal. It requires reasonable search and attribution. How did this get in there, with almost no comments? The CO proposed it at the roundtables and met with general agreement. But it cuts both ways, especially with orphan works. But what if you don’t know, or don’t know for sure? “This might be a Picasso sketch.” Attribution is not just credit, but responsibility. It differs in this way from moral rights. This came up in the Gone With The Wind case. Also, the Cat Not in the Hat. The process is one of literary criticism — can we connect this up with the original text? If you can, it’s fair use; if you can’t, you don’t. In some way, the original author is responsible, partly, for the interpretation that the second comer placed on the original.

There are authors who are offended by this. “I didn’t mean that” is hard to argue with. There’s a second fear — the author may fear that the audience can’t distinguish betwene the original and the derivative. This is the problem with Gilliam — heavy editing of Monty Python that makes it less funny. In fandom, we can tell because of production values and general cultural knowledge.

Although it’s a different form of control, attirbution is an exercise of authority over the original Author as well as disclaiming one’s own Romantic authorship. Not that attribution’s bad — it’s a workable norm.

We can learn from fandom that there are ways to have authorship without having total control. They are complicated and messy and hard for the law to recognize, but they exist and they work.

Comments by Jessica Litman:

Boyle has written that there’s a balance between controlled and uncontrolled uses. None of the policies of copyright would be undermined if fan creations were uncontrolled and legally uncontrollable. Fans made Star Trek survive as a franchise. Same with Star Wars. Without the fans, and without the fic, these wouldn’t have survived.

But “No Harry-Draco slash” sounds pretty reasonable, coming from JK Rowling. But these works are not completely original — they are influenced by the fans, and moreover the fans’ experiences of the works influence other fans’ experiences of the works.

We’ve all been undervaluing the reader, and their place as a creator in the copyright skein. To read anything at all, someone needs to experience the work. We haven’t been paying enough attention to readers and listeners, at a theoretical level. Author incentive theories relegate readers to the ghetto of fair use. And fair use just isn’t capacious enough.

there are other tools to properly treat fannish creativity — implicitly authorized derivatives, for example. If they want to vary the terms, let them do so by contract. As a normative matter, it’s an ominous sign that we’d need an implied license theory to make this work.

We’ve allowed two large non-statutory expansions. We’ve promoted an expansive literal reading of copyright, in which everything’s licensed, privileged, or infringing. the reading is broader than the language of the statute requires. Second, we’ve failed to prevent the expansion of each of the rights in the copyright bundle, and they’ve coalesced into a general use right. Copyright owners have persuaded courts that “looking at” is an exclusive right, and that “distribution” includes making available. This is a huge expansion, and implied license won’t make much of a dent.

To resist this, we need to push back with something. Recalling that readers, listeners, and viewers have a central place in the copyright system is one way to push back. Rebecca’s fan communities may seem utterly exceptional, but they’re not. They interact with the works. This is something that copyright should encorage, and traditionally did. Only expansion shows the problem, and we need to reexamine it.

Comments by Mark Lemley:

Yesterday, we talked about the need for ethnographies. This is one. Since it’s about fanfic, it seems appropriate that I repurpose her idea in an unintended way. Here goes.

Let’s use this as a way of thinking about fair use. One important lesson is that there’s a relationship between fair use and scale. Fanfic works primarily because it’s small-scale. You can only have Harry-Draco slash in a small community — if it took over from the real thing, the original would be changed, and the normative baseline would move. If we fork the genre, we can’t comment on it anymore.

There are a number of cases like this, where scale matters. An identical large-scale use is problematic where a small-scale use isn’t. Photocopying is one example. P2P file sharing is another example. When it’s friends, it’s less of a problem than when it’s with the whole internet. The fair use doctrine deals with this by implying that the scale will always be large — “If this use becomes widespread, will it interfere with incentives?” This might be the wrong question. It creates problems where they don’t exist. Marginalization is probably a cost of not seeking permission.

Second, flying below the radar — not producing fanfic that’s illegal under fair use but which never gets caught — may still be an important freedom. Does the practice onthe ground, even if nominally illegal, give us the freedoom to tinker? Feinstein was bemused, at the “post-Grokster” hearing, that P2P still existed. The answer is that the world is not dictated by law, and that interaction may be a freedom we enjoy without being legal.

Third, should we protect copyright owners from themselves? Things copyright owners fail to prevent turn out to inure to their benefit over and over and over. But I think it’s important to separate compensation from control. One of the problems with fair use is that it denies both compensation and control, where one or the other may very well be appropriate. Its lack of granularity limits the scope of the doctrine.

We ought to get rid of the injunctive right where the use is unfair ONLY because there’s a market for licensing those uses. These are rightly derided as circular. your right ought to extend only to payment in such a case, not to an injunction. Copyright law would have to change to make this work. We’d need a non-punitive damages regime (no statutory damages, for example).

In the last two pages, the attirbution norm come up. Which instinct’s at work? How do we work this out?

Comments by Paul Goldstein:

I liked this paper’s window on a culture I’m not familiar with. Having opened the window, it sheds light on the interplay of two copyright themes — fair use and moral right. I’d like to nudge open the window a bit wider with regard to the “fair dealing” attribution requirement in other countries. That captures both fair use and moral rights in a single strain.

The norms implicit in the practices of other countries underpin Berne. We’re contrained by Berne, so let’s keep in tin mind.

First, fair use is a vessel capturing a variety of impulses. There are four versions of fair use in US practice — Betamax private copying (he thinks acceptable under Berne), parody (even more robust elsewhere — even in France), transformative use other than parody (problematic under Art. 12 of Berne, since it’s an adaptation), and abuse of right. Using copyright for non-copyright purposes, like the Howard Hughes case where it was used to protect privacy. Another case is Sega v. Accolade, where copyright was leveraging control over uncopyrightable operating system elements. I’d love to see more of this in American copyright doctrine.

Next, moral right. She rightly underscored the attribution right. The right of integrity, in the US, is viewed as central. In fact it’s not. The central right is that of attribution. There’s a powerful norm at work here. Moral right gets a bad rap here. Motion picture studios don’t want it. In the Dietz report, he shows that moral right can be as utilitiarian and as flexible as American fair use. Let’s pay attention to developments abroad.

Tushnet’s response:

We must be wary of the sense of authorial genius in fandom.

Authorship owny showed up at the end of Lemley’s comments, with attribution as a substitute for compensation. But it actually shows up at the beginning, before the corporate form takes over. I’m hesitant about the “small-potatoes” argument. Let’s point to Batman. Batman is corporately owned, and has been for quite a while. There are many different canonical Batmans. To say that copyright is a way of guaranteeing control seems odd when there’s no individual owner. Corporate ownership may change the works substantially. People can tolerate forking of stories in ways they can’t tolerate forking of code. You can maintain an image of the canonical Harry alongside the Harry-Draco slash Harry.

With respect to the international points. Japanese practices are particularly interesting. There are fan populations all over the world, and a lot of Western European vidding.

Questions:

Larry Lessig: What’s the pushback given the clear logic of describing the problems in the copyright system? Fandom has always been around, independent of copyright. The expansion of the mechanics of copyright is sweeping in things that never implicated copyright before. How do we draw the line between the domain of copyright and the rest of the world, keeping it from sweeping too much with its reach?

Litman: In 1994, fighting off the DMCA, we were busy saying that copyright was so big that it was big enough. Maybe we shouldn’t have said it was so big. We focused on RAM copies, not paying attention to the expansion of copyright into a general use right. In 1976, nobody would have said there was this general use right. Ray Patterson was right — we need to see copyright as a narrow set of exceptions to the general rule of freedom, rather than a “damage to bottom line therefore prima facie infringement” view.

Tushnet: Larry’s move — this has always happened — can always be countered with Mark’s move — scale matters. But people didn’t always make vids. To say that this has always been going on is in some respects wrong. Things like this have been going on, filling the same social purpose. But vids are new. This makes Mark’s move more attractive.

Neil Netanel: You say one reason copyright should not extend to prohibit fanfic is that fans as consumers give value to the work. I wonder about that — generally in property law, the value of consumers for a product is not a reason to limit rights in property. Value does not imply a weaker right, does it?

Tushnet: I think that’s implicit in the piece, but I’m worried about embracing it in those terms.l The value is emergent in the interaction. Belinging to one side or the other doesn’t fully describe the situation. Think back to Econ 101 — consumer surplus. Who should get it? (Not “who created it?”) We face a policy choice about who gets the most benefit from this undefined, emergent value. That’s why we should allocate it to lots of different people.