Fansplaining: Buncha Lawyers

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Title: Fansplaining: Buncha Lawyers
Created by: Flourish Klink and Elizabeth Minkel
Date(s): September 14, 2015
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Fansplaining: Buncha Lawyers is a podcast by Flourish Klink and Elizabeth Minkel.

The interviewees are Betsy Rosenblatt and Heidi Tandy.

For others in the series, see Fansplaining.



"Buncha lawyers! That’s the title of this episode. And we’re the podcast by, for, and about fandom, so they’re fandom lawyers. We’ll be talking to Betsy Rosenblatt, who is a fandom lawyer and works with the Organization for Transformative Works, and Heidi Tandy, who is half of fyeahcopyright, and another…legal…fandomer…person. [laughter] Meh! You know, we can talk. Our podcast is just all about us talking. We’re good at it."

Topics Discussed


Excerpts: Betsy

BR: Well, I am a lawyer, and, ah, more to the point I’m a law professor, and I also do have a small consulting law practice although my focus is being a professor. And my main extracurricular activity aside from fiber arts and fandom [general laughter] is that I am the chair of the Legal Committee of the Organization for Transformative Works.

ELM: So that, I mean, it sounds like you’re–your professional work, what you teach, goes hand-in-hand with the kind of work you’re doing for the OTW, is that a bad assumption, or?

BR: No, that’s very very true. Actually I teach a variety of intellectual property subjects at the law school. I also teach civil procedure, which has nothing to do with fandom at all, but is fascinating! My scholarship is, you know, when I write law review articles and stuff like that, is often about areas that are close to my fandom heart, like areas where copyright law is complicated by the fact that people are doing things because they love them, not necessarily because they want to make money from them.

BR: I am an old school Sherlockian! I’m a Sherlockian from back back in the day, I was born into Sherlockiana, and I’m a member of the Baker Street Irregulars and the Adventuresses of Sherlock Holmes...

So, I actually think in a lot of ways that new fans should be schooling old-school fans. Old-school Sherlockiana was dominated by men who were mostly writing fantastic meta, and then this sort of separate group of people who were also writing pastiche, a lot of which was commercial pastiche, and the sort of fandom-for-the-joy-of-fandom and fandom on the internet and a lot of the sort of speculative fandom that dominates media fandom now is really symbiotic with old-school Sherlockiana–but they haven’t communicated a lot until the last maybe five years.

FK: So something I’d never heard before about the OTW, actually and this is funny because I’ve been around since like before there was an OTW and I remember its founding very well, but I never heard the “protecting fanworks from commercial exploitation” bit. That’s really interesting! I know you can’t speak for the OTW, but what is it often interpreted to mean?

BR: What it mostly means to us is that we are all about the non-commercial fan. We’re about creating a world where people who want to do fan things, because they love fandom, aren’t denigrated for it and are treated with respect and appreciation. It also means that when people come to us with questions about, like, “I want to make money from my fanwork, how do I do that?” our answer is “That’s not quite what we do.” We do other things, ah, there are other people you can talk to about that. One of the areas where we do work to protect fanworks from commercial exploitation is there’s lots of circumstances when someone has made a fanwork of, there are lots of different circumstances where this happens, one is for example like a fanvid, or a story that then someone else publishes or someone else wants to use for advertising or advertise over, and if the fan is unhappy about that because they feel it’s plagiaristic or because it’s commercially exploiting their labor for someone else’s commercial benefit, we can help them explore ways to keep their work out of the commercial zone. It happens a lot, actually. It happens where people put their works up on the internet and then someone decides they want to sell them on Amazon as eBooks. There was a, an outfit relatively recently within the last few months called eBooks Tree
BR: Copyright infringement and plagiarism are really different things. And plagiarism isn’t illegal. It’s immoral, but it isn’t illegal. Copyright infringement is taking someone’s expression without their permission. Doesn’t matter whether you attribute it to them, all that matters is whether you got their permission. And the remedy for infringing someone’s copyright is paying them. Plagiarism is taking someone’s ideas without attributing them. Doesn’t matter whether you got permission, although it’s unlikely that someone would give permission for you to use their ideas without attribution, some people certainly would. So plagiarism is using someone’s ideas without their attribution, and the remedy for plagiarism is attribution. So there are certainly times when I think people think “oh, copyright infringement is wrong,” like imagine someone made a tentpole movie out of my fanfiction and didn’t pay me, right, and they think, like, “well, I don’t care if you credit me, you’re making two billion dollars off my fanfiction, you should pay me!” But other times I think copyright infringement is something that people end up doing in their day-to-day lives, whereas plagiarism is something they wouldn’t dream of doing, because they understand that it’s wrong. It just isn’t illegal.

ELM: What is expression?

BR: Before we get to what expression means, which is a great question, is, I think there are a lot of people who believe that because fanworks are derivative in the sense that they’re derived from something else, that fan creators don’t own copyright in their fanworks, and that’s false. Fan creators do own copyright in their fanworks, they don’t own copyright in any of the underlying work that they derived their work from of course, you’re an X-files fan, you don’t get any rights over the X-files. But you do get rights over your story or your fanart or your fanvid. That ties in with your question of what is expression. Expression is the way you convey your idea. So, your actual sort of arrangement of words in a story. That’s a very specific kind of expression. Or the way you’ve organized your ideas. The reason we say “expression” is to distinguish it from an idea. An idea isn’t copyrightable because it’s just an idea. It’s out there floating in the world, that anyone can use. But when you get down to a certain level of specificity, you start to think, “this isn’t free-floating out there for anyone to use. This is a particular way that someone did something,” and that’s an expression that is at least potentially protectable by copyright.
BR: I don’t think that the commercial side of things, for example what you’re doing, is inconsistent with the existence of this noncommercial gift-based sharing-based fan ethos. I think it becomes inconsistent with that when there’s an assumption that everybody should want to or does want to commercialize what they’re doing. Or everybody should want to or does want to have the powers that be involved. That’s a really dangerous set of assumptions because it breeds censorship. And it breeds, it silences certain kinds of speakers. As long as it doesn’t become normative, to use too fancy a word, there’s no inconsistency there. The inconsistency comes it becomes a “should” rather than an “is.”

Excerpts: Heidi

HT: Thank you so much for having me here! I’m just back from DragonCon where I spent a couple days talking about fan law and IP, copyright, fair use, contracts, why you shouldn’t ask people who are reviewing your books to say, to lie about whether they got them for free, [general laughter] all sorts of other things that are now totally falling under this legal area called “fan law” where there’s just an intersection of so many different issues that are not new but that definitely are being understood in different ways by the mainstream media, by people who are creating fanworks, and by the powers that be who are finally realizing that no they really can’t overreach when it comes to claiming copyright rights that they don’t have and trademark rights that they’re not allowed to establish.

ELM: So let’s take a step back. I think it’d be helpful for our listeners to know just briefly who you are. I know you’re a lawyer, but you’re a fan lawyer too, or just a fan… all three, all three!

HT: Well, I was a fangirl before I was a lawyer, but I was a lawyer before I was a fandom lawyer.


HT: So because of all that, over the past couple years, I’ve done things like founded FictionAlley; been part of the original legal committee for the Organization for Transformative Works, which I still serve on; spoken at South by Southwest and DragonCon and Comic-Con and law schools like the University of Pennsylvania; and currently in addition to all those other fan things I’m doing, I also run/manage, where we talk about legal issues as they intersect with fandom, fanworks, and pretty much anything that people want to post on Tumblr.

ELM: And another thing that I know you’re doing right now and that I saw you talking about at both Comic-Con and GeekyCon was a campaign called Fanworks Are Fair Use, right?

HT: Yes.

ELM: Can we go back to the Fanworks Are Fair Use campaign? I want to know more about this.

HT: So one of the things that I’ve been working on for the last couple months or so has been with the Harry Potter Alliance and a number of other fanfic writers, authors, people like Orlando Jones have been involved in this, the OTW is involved, SuperWiki, the Three Patch Podcast, we’ve all come together to work on this campaign called Fanworks Are Fair Use. It does what it says on the tin: it lets people know that fanworks are fair use, that being creative is fantastic, and one of the underlying instigators of this has been discussions that I was having with the HPA back in the spring–actually, probably going back three or four years–that fanworks have given people so much. It’s awesome and it’s enjoyable to get to read the stories you like and to get to see a fantastic piece of art and someone really talented make a great fan film or an amazing song. And all of us know some really fantastic people who’ve come out of fandom to do just phenomenal stuff in the publishing industry, entertainment industry, you know, off-Broadway this fall, et cetera et cetera. And it’s fantastic that people manage to grow and develop their skills within fandom, and within–not just by writing fanfiction in a vacuum or creating fanart in a vacuum, but because of the community around them and the people who are there to give you commentary and feedback and talk something over with you and share your headcanons and share your squee. And that makes a really serious, significant impact on people’s creative output, creative impulses and creative inspiration. So we’ve created this #FanworksTaughtMe hashtag, it’s on Twitter, it’s on Tumblr. By doing this, we’re getting people to share different stories about what fanworks have taught them.

ELM: We haven’t said what FYeahCopyright is!

HT: So about two and a half years ago, Universal Studios decided to sue a porn company that was doing a “parody” of 50 Shades of Grey. It was well before Universal was going to be able to roll that movie out the door. And they sued, and their pleading papers were absolutely fantastic because it said things like “oh, just because a story has been posted as fanfiction on the internet doesn’t mean it’s protected by copyright,” and the porn company was walking around saying “oh, it was posted on the internet, therefore it is public domain,” which is not true! So I thought that it was just lovely sentences and I wanted to preserve them in a way that people would be able to access forever, so I started a Tumblr to preserve this stuff and we started getting questions from people who were like, “But I thought that everything I posted online was public domain!” And then we started dealing with people who misguidedly believed that it was important for them to write a disclaimer on their fanfic that said “I don’t own anything, you can use it for anything.” And the problem with that is, yeah, possibly then you are coming very close to releasing it into the public domain but at the very least you’re giving nefarious and evil people the right–you are licensing them the right!–to take your fanfiction and upload it onto Amazon and sell it. And I don’t think that that’s what people really have in mind when they say “I don’t own anything.” But, unfortunately, that’s how courts would interpret it, that’s how evil nefarious people would interpret it, and while they’d be unfair, they’d have unfortunately almost an entire leg to stand on. So we started doing this Tumblr, and we were getting questions, and we were trying to explain things to people, and then rumors started flying about Terms of Use agreements, and these people did some kind of insane psychological experiment on Tumblr where they lied about Tumblr’s Terms of Use, and all of a sudden we had 5,000 people following us. And it’s nice to have a way to talk about the legal issues in connection with fandom, not just how to be creative but how to protect other people’s creativity.