"‘Fair dealing for the purposes of humiliation, embarrassment & mockery’ is a bit of a contradiction in terms."

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Title: "‘Fair dealing for the purposes of humiliation, embarrassment & mockery’ is a bit of a contradiction in terms."
Creator:
Date(s): December 16, 2013
Medium: Tumblr
Fandom: Sherlock, and others
Topic:
External Links: "‘Fair dealing for the purposes of humiliation, embarrassment & mockery’ is a bit of a contradiction in terms.", Archived version
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"‘Fair dealing for the purposes of humiliation, embarrassment & mockery’ is a bit of a contradiction in terms." is a 2013 essay at ef yeah copyright law.

It was created in reaction to Caitlin Moran's Fic Stunt (in which a journalist had Benedict Cumberbatch and Martin Freeman read some slash fic aloud at a very public gathering) and An Open Letter to Caitlin Moran (one of the many outraged reactions).

The title of the essay, "‘Fair dealing for the purposes of humiliation, embarrassment & mockery’ is a bit of a contradiction in terms.", is a quote from AJ Hall. [1]

Excerpts

As fans and fanfic writers, we’ve been discussing Caitlin Moran’s objectionable actions at the BBC’s Sherlock screening in requiring Martin Freeman and Benedict Cumberbatch to read a piece of John/Sherlock slash aloud with a slightly different perspective

Ethically, what Moran did was wrong, and that’s been discussed by Midlredandbobbin, the awesome author of the fic in question, on tumblr, on blogs, and on Twitter. (This won’t be the first time she did something awful, btw.)

But legally, did she do anything wrong?

The answer is, under English law, probably.

In all of the English-speaking countries, a fanfic writer holds the copyright in her exact word choices from the moment of creation. That doesn’t mean she gets copyright in the characters that come from others’ works, or in the lines that she quotes from the canon or from other sources, or in short phrases or names, but in each sentence that she pens, she owns some rights; posting a story or image or article online does not put that work in the public domain; it simply means that the work “has been made available to the public”.

Those rights, like all copyrights, aren’t a monopoly and aren’t perpetual, and can be sold or licensed away. Anyone can quote a portion of it in a recommendation, commentary or criticism, for educational purposes, etc, and the sites where she chooses to post the work can use it pursuant to their Terms of Use. In the US that right of other people to use bits of your fic is considered Fair Use, and in other countries, it’s Fair Dealing.

Ms Moran’s commentary during this portion of the Q&A could [easily] be deemed derogatory, and given what the author said in her posts yesterday, the use of her story in this context can be viewed as a distortion of the honour of the author.

The author did not wish her real name used, so the moral right relating to “being identified” as the author is less relevant than the second right, namely “the right to object to derogatory treatment.” It is clear from the author’s own post on Tumblr that she regards this moral right as having been infringed, and there seems good grounds for her to take this view.

She wrote this story, and others, to share with friends and within the fandom. Is it distorting her honour to take her “writing out of context without permission, belittling it and using it to embarrass actors who I deeply admire”?

As a matter of law, it may very well be.

References

  1. ^ "AJ Hall tweet". Archived from the original on 2018-08-29.