Transforming how we think about fiction… and copyright

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Title: Transforming how we think about fiction… and copyright
Creator: Ethan Zuckerman
Date(s): December 12, 2007
External Links: Transforming how we think about fiction… and copyright; WebCite]
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Transforming how we think about fiction… and copyright is a blog post by Ethan Zuckerman.

The topic is the creation of the Organization for Transformative Works.

Excerpts from the Post

Several of my friends are involved with a very interesting new project, the Organization for Transformative Works. The project’s organizers describe the new organization as “established by fans to serve the interests of fans by providing access to and preserving the history of fanworks and fan culture in its myriad forms.”
Fan culture is a huge segment of online culture, but one that can be almost invisible to the uninitiated. (I suspect I’d be almost wholly unaware of the phenomenon but for the fact that several close friends are active authors and vidders.) Some participants in fan culture have been shy about sharing the world with the wider web, for two understandable reasons. One, there’s a fear that overagressive enforcement of copyright and trademark law could turn fans into criminals. Second, some members of the fan community worry that their hobby won’t be taken seriously, and will reflect poorly on their professional life. (Before dismissing this, review the Church of the Subgenius custody case, where a woman’s involvement with a satirical “postmodern religion” had serious consequences for her struggles for custodianship for her son. A persistent, searchable web makes it ever more likely that your hobbies can be badly misunderstood by people with power over you.)
Understanding these aspects of fan culture helps explain why Organization for Transformative Works is so unusual and important. First, the word “transformative”: much of the literature on fair use in US copyright law focuses on the idea of transformative use. Fair use means that it’s possible to use parts of an existing text to comment on, criticize or parody an existing work. The actual details of what is and isn’t considered fair use gets very complicated - reviewing the Four Factor test is helpful to get a sense of what’s considered - but transformative use, where portions of a work are used in a new way to create new, original work have a much better chance of surviving a legal challenge than works that simply reproduce copyrighted material without transforming it. By using the word “transformative” in the organization name, the organizers of the group are advocating a legal argument - writing fan fiction based on the characters and universes of copyright-protected media is a transformative use, protected by fair use clauses in US copyright law. In other words, this is an attempt to stand up and fight for this interpretation, rather than hiding from copyright holders, which is a huge step forward to this subculture.
Finally, the women behind OTW are signing their names to the organization, something that’s been uncommon in fandom. Many prominent fans are known only by psuedonyms, and some go to great lengths not to link their fandom and real-world identities. But the board of OTW includes best-selling author Naomi Novik, as well as a number of university professors, all of whom are publicly declaring the value of fan culture and their willingness to be associated with the remix of copyrighted activity. This is likely to change mainstream media attention about fan culture - someone is bound to get the idea of interviewing Novik about whether she’s supportive of fans remixing her excellent Temeraire books. (She is.)
What will OTW do? Early plans include an archive of fan work, titled “An Archive of Our Own“. Lots of fan work exists on sites like LiveJournal which haven’t proven their dedication to defending fans’ rights - see SixApart’s mistreatment of media fans earlier this year. A fan-controlled, fan-maintained archive would help many creators sleep better at night. So will a legal assistance project dedicated to protecting creator’s rights. And OTW is promising a peer-reviewed academic journal on “scholarship on fanworks and practices”, which is only appropriate for an organization dominated by academics.

Excerpts from the Comments

Church: Good on you all!

It’s refreshing to see someone take an aggressive stand vs. the copysquatters. Where do I sign up?

Luminosity: The OTW’s time has come, clarifying the importance of fandom creativity to pop culture. In this UGC age, fandom is a conduit of folklore and tradition, reminding us that media not only makes memories, but its fans remix, reinterpret and retell them, keeping them alive. The organization was an invaluable help to me last month when I was interviewed by New York Magazine about fan vidding and fan vidding culture. I’m hopeful for its good and continued success.
purses: Wonderful information. Keep up the good work - it’s nice to see someone on the other side of the copyright battle for once!