Legal Fictions: Copyright, Fan Fiction, and a New Common Law

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Academic Commentary
Title: Legal Fictions: Copyright, Fan Fiction, and a New Common Law
Commentator: Rebecca Tushnet
Date(s): 1997
Medium:
Fandom:
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Legal Fictions: Copyright, Fan Fiction, and a New Common Law is a lengthy 1997 journal article by Rebecca Tushnet.

It was published in volume 17 of the Loyola of Los Angeles Entertainment Law Journal, 1997 (17 Loy. L.A. Ent. L.J. 651), published with permission to Whoosh! in 1997. It was cited in Am I Going To Be Sued?.

Excerpts

Copyright law has long been a concern more for corporations than for ordinary citizens. However, with new technologies that allow individuals to produce and distribute information easily, however, copyright law is becoming increasingly relevant to common activities. Much has been written about the problems created by the easy reproduction of copyrighted documents and by the poor fit between law and technology that makes every person who browses the World Wide Web ("the Web") a likely lawbreaker. n2 This Article goes beyond the debate over pure copying to analyze the implications of creative work - now widely accessible via the Internet - that draw on copyrighted elements of popular culture.
The question is not an idle one. Many entertainment corporations have left fan fiction alone, but a few have attempted and are attempting to stamp out unauthorized use of their proprietary characters. With the increasing use of the Internet by amateur writers, fan fiction is becoming easier to find and police. Most fan authors are non-lawyers of limited means, and are at the mercy of their Internet service providers, who, fearing liability as accessories to copyright infringement, will shut down an account or Web site in response to an informal complaint from a copyright owner. Therefore, copyright owners will find it simple to enforce a vision of copyright law that extends to every mention of their property.
Fans are widely seen as eccentric at best, delusional at worst. Henry Jenkins notes, "What may make [fan activity] particularly damning is that fans cannot as a group be dismissed as intellectually inferior; they often are highly educated, articulate people who came from the middle classes .... What cannot be dismissed as ignorance must be read as aesthetic perversion." But fandom is not an unprecedented artifact of modern mass media. It resembles and descends from earlier forms of popular culture:

References