Payment in credit: Copyright law and subcultural creativity

Law and Contemporary Problems

Volumn 70, Issue 2, 2007, Pages 135-174

  Tushnet, Rebecca ^a  

^a GEORGETOWN UNIVERSITY LAW CENTER   (United States)

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EID: 35048902212     PISSN: 00239186     EISSN: None     Source Type: Journal    
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References (234)

1. Chris Carter Central, http://www.geocities.com/chriscartercentral/ (last visited Nov. 27,2006).
2. James Boyle, The Second Enclosure Movement and the Construction of the Public Domain, 66 LAW & CONTEMP. PROBS. 33, 72 (Winter/Spring 2003).
3. Jessica Litman, Creative Reading, 70 LAW & CONTEMP. PROBS. 175, 177 (Spring 2007).
4. See generally Carol M. Rose, The Several Futures of Property: Of Cyberspace and Folk Tales, Emission Trades and Ecosystems, 83 MINN. L. REV. 129 (1998).
5. Part of cultural environmentalism is a recognition that ordinary people have theories of creativity, fair use, and fair attribution, even if they do not have an elaborate theoretical apparatus. Just as you don't need a weatherman to know which way the wind blows, you don't need a scholar to know that multiple interpretations of a text exist.
6. Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569, 584 (1994) (quoting 3 BOSWELL's LIFE OF JOHNSON 19 (G. Hill ed., 1934)).
7. See Francesca Coppa, Writing Bodies in Space: Media Fan Fiction as Theatrical Performance, in FAN FICTION AND FAN COMMUNITIES IN THE AGE OF THE INTERNET: NEW ESSAYS 225 (Karen Hellekson & Kristina Busse eds., 2006) [hereinafter FAN FICTION].
8. See Rebecca Tushnet, Legal Fictions: Copyright, Fan Fiction, and a New Common Law, 17 LOY. L.A. ENT. L. REV. 651, 656-57 (1997). I use "culture" here in the way that Christopher Kelty (not entirely approvingly) defines as "an unspecified but finely articulated set of given, evolved, designed, informal, practiced, habitual, local, social, civil, or historical norms that are expected to govern the behavior of individuals in the absence of a state, a court, a king or a police force, at one of any number of scales."
9. Christopher M. Kelly, Punt to Culture, 77 ANTHROPOLOGICAL Q. 547, 553-54 (2004). Cultures are changeable and contestable, but research into their existing and evolving norms can provide practical ways to resist top-down control by copyright owners.
10. See id. at 556;
11. see also Michael J. Madison, Rewriting Fair Use and the Future of Copyright Reform, 23 CARDOZO ARTS & ENT. L.J. 391, 409-10 (2005) (advocating basing fair use determinations on established patterns of acceptable uses within specific groups).
12. See Francesca Coppa, A Brief History of Media Fandom, in FAN FICTION, supra note 7, at 41.
13. KSNicholas's invaluable website is no longer available on its original AOL site. Its October 2003 version, the last before the fan fiction links were apparently taken down, is archived. See Internet Archive, http://web.archive.org/ (last visited Jan. 22, 2006) (enter "http://members.aol.com/ksnicholas" in the "wayback machine" to retrieve the archived page).
14. See Books, http://www.fanfiction.net/cat/202/ (visited Oct. 1, 2006) (showing 267,399 HARRY POTTER stories). The FanFiction.net statistics significantly underestimate the number of available stories because FanFiction.net does not accept sexually explicit stories.
15. For example, Gossamer, the main X-Files archive, receives from 6,000 to 20,000 hits on individual stories each day, down from a peak of 60,000 per day in 1998. See How Much Traffic does Gossamer Get?, http://fluky.gossamer.org/local/basic.html#traffic (last visited July 27, 2006). This level of traffic occurs even though the stories are part of the "Invisible Web," not indexed by search engines.
16. See Gossamer Policies, http://fluky.gossamer.org/local/ policies.html (last visited July 27, 2006) (each Gossamer site uses robots.txt to prevent automatic indexing).
17. See Kristina Busse & Karen Hellekson, Introduction: Work in Progress, in FAN FICTION, supra note 7, at 5, 13.
18. FanFiction.net is one large multifandom archive of fan fiction. In addition, a Google search combining "fan fiction" and a popular (or even rare) media text will generally return numerous examples. Similar searches for "fan art" and, with audiovisual texts, "fan videos" or "fanvids" will also produce results. Many fan videos are now available on video-sharing sites such as YouTube, searchable by the name of the original video source.
19. See Marshall Sella, The Remote Controllers, N.Y. TIMES MAG., Oct. 20, 2002, at 68.
20. See Busse & Hellekson, supra note 13, at 13-14.
21. See id. at 13 ("Fans may write and post fan fiction... without even knowing what it is or knowing that there are forums to do this in, and such fans naturally have no idea that they are part of a wider community .... [R]ules that seemed important in the old-model enculturation stage - for instance, the admonition to never, ever write slash [sctories with homosexual content] based on real people rather than characters ... have lost their meaning.").
22. See, e.g., Meljean Brook, The Fan Fiction FAQ, http://www.meijeanbrook.com/ fanficread.php?file=fanficfaq.html&title=The%20Fan%20Fiction%20FAQ (last visited Dec. 13, 2005).
23. Not incidentally, most fan creators are women. Carol Rose points out that we often do not notice limited common-property regimes because they are run by people "somehow deemed inappropriate to make claims of entitlement," like women. Rose, supra note 4, at 141. Disvalued groups' properties are deemed improper by those in power, and the combination of unusual communal claims and low social status prevents further inquiry into how such groups manage their expressive resources.
24. See, e.g., Judith Gran, Fan Fiction and Copyright, JUDITH GRAN'S FAN FICTION, August 1999, http://www.alternateuniverses.com/judygran/copyright.html (last visited Dec. 13, 2005).
25. For discussion of the ways in which media fans are, and perceive themselves to be, objects of derision and incomprehension, see HENRY JENKINS, TEXTUAL POACHERS: TELEVISION FANS AND PARTICIPATORY CULTURE 9-24 (1992). Though I will generalize about fan beliefs about fair use, that does not mean all media fans share these beliefs. Given that fair use is an unpredictable doctrine in the courts and that copyright owners claim rights against fan creations only rarely and unpredictably, it would be surprising if fans had reached a consensus that had eluded everyone else.
26. See Tushnet, supra note 8.
27. Id. at 683-86. My focus has been on U.S. law even though media fandom is a global phenomenon because U.S. law is unusually open-ended, whereas many other countries have limited exceptions to copyright for which fan creations are less likely to qualify, and also because U.S. copyright owners, like many other U.S. entities, are relatively swift to threaten lawsuits when they perceive an interference with their rights.
28. See, e.g., Cease and Desist Notices: Fan Fiction, http://chillingeffects.org/fanfic/notice.cgi (last visited Nov. 26, 2006) (hosting copies of cease-and-desist letters received by various fan sites).
29. But cf. Bruce P. Keller & Rebecca Tushnet, Even More Parodic Than the Real Thing: Parody Lawsuits Revisited, 94 TRADEMARK REP. 979, 995-97 (2004) (discussing instances in which copyright owners are willing to license negative or transgressive versions of their works); e.g., BATMAN: I, JOKER (1998) (DC Comics graphic novel in which the usually villainous Joker is the hero and Batman is the evil enemy).
30. SunTrust Bank v. Houghton Mifflin Co., 268 F.3d 1257,1276 (11th Cir. 2001).
31. See, e.g., Copyright Law for Internet Fans, http://www.geocities.com/willowgirl95/copyright.html (last visited Oct. 1, 2006) (noting claims in a cease-and-desist letter "might not be infringements if examined by a court, but webmasters like you and I hardly have the means to take Fox to court over our website that we do for free").
32. There is an exception: Fan art is occasionally sold on a linted-edition basis at fan conventions, sometimes for charity and sometimes for profit. By contrast, Internet distribution has largely supplanted sales of printed fan fiction, though some fanzines still remain; even with zines that cost substantial sums, many publishers claim that the price is set simply to recoup the cost of production, which is not the case with fan art. Noncommercial use is a technical concept in copyright law, but fans use as their measure of commercial fairness a concept something like "operating in such a way as to make the fan no better off, financially, than she would be in the absence of her fan creations." Cf. Henry Jenkins, CONVERGENCE CULTURE: WHERE OLD AND NEW MEDIA COLLIDE 166-67 (2006) (fan sites were popular and vital to the success of the game The Sims, but that success "just about led to the extinction of the fan community because the most popular sites needed to pay massive bills for the bandwidths they consumed, until the company rewrote their terms of agreement so that the fans could charge modest fees to recover the costs of maintaining their distribution centers"). Thus, because physical printing requires significant monetary expenditure, fans historically considered it legitimate for the publisher to recoup those costs, but not to pay fan authors for their creative work. (Fan authors receive no payment from fanzine publishers, but they do generally receive free "contributor copies.") Fans' willingness to allow fanzine publishers to participate on a small scale in the commercial economy has echoes in their ready use of for-profit intermediaries such as video sharing sites, discussed infra Part V.
33. Wikipedia's entry on Lori Jareo, a fan author who briefly listed a Star Wars novel for sale on Amazon, describes this self-policing in action. See Lori Jareo, http://en.wikipedia.org/wiki/Lori_Jareo (last visited July 13, 2006). Unlike authors whose works appear in fanzines, Jareo was attempting to collect payment for her creative contribution, not pricing her work based on its physical production costs.
34. Although copyright law is supposed to avoid aesthetic judgments, there may be differences in the fair use analysis based on the type of work. Joseph Liu argues that fan fiction with a new storyline is probably fair use because of the authorship contributed, but a picture of Superman fighting Batman has a worse fair use defense. Joseph P. Liu, Copyright Law's Theory of the Consumer, 44 B.C. L. REV. 397, 415-20 (2003). Yet there are better and worse drawings of Batman and Superman; the artist's talent will provide some of the value of the picture, so fan artists can make the same arguments as fan writers.
35. Cf. Andrew Herman et al., Your Second Life? Goodwill and the Performativity of Intellectual Property in Online Gaming, 26 CULT. STUD. 184, 199 (2006) (noting gamers evoke Lockean concepts to justify ownership of artifacts they have created within the game, though such other gamers contest those claims). A detailed discussion of Lockean theory as applied to copyright is beyond the scope of this article.
36. See generally Wendy J. Gordon, A Property Right in Self-Expression: Equality, and Individualism in the Natural Law of Intellectual Property, 102 YALE L.J. 1533 (1993).
37. See, e.g., James Boyle, A Politics of Intellectual Property: Environmentalism for the Net?, 47 DUKE L.J. 87, 98 (1997) ("[T]he idea of the original author or inventor implicitly devalues the importance of the raw materials with which any creator works - the rhetorical focus on originality tends to undervalue the public domain. After all, the novelist who, as Paul Goldstein puts it, 'craft[sc] out of thin air' does not need a rich and fertile public domain on which to draw.").
38. Many discussions of fan fiction emphasize the distribution of authorship and the centrality of a community of interpreters, who are also authors. See, e.g., Abigail Derecho, Archontic Literature: A Definition, a History, and Several Theories of Fan Fiction, in FAN FICTION, supra note 7, at 61. Texts never make sense on their own, but must be read in context. In fan fiction, this fact is particularly salient, as readers are closely connected to writers through immediate feedback, constant discussions of underlying canon, and self-identification as members of a fandom based on particular source texts.
39. See Coppa, supra note 9, at 56 (noting the explosion of creativity that followed a single foundational story "whose premise is explained by its famous and endlessly replicated opening line, 'Somehow, in the night, Chris had turned into a girl.'"). Virginia Woolf's Orlando uses the same unexplained premise, but fans had generally followed the fantasy-science fiction rule that they had to explain in the narrative the premises, whether scientific or magical, of their bizarre scenarios. Breaking that rule in a bold, well-written fan story expanded readers' and later fan writers' imaginations.
40. See Rosemary Coombe, Left Out on the Information Highway, 75 OR. L. REV. 237, 245-47 (1996).
41. See Tushnet, supra note 8, at 669;
42. cf. Jordan Hatcher, Of Otakus and Fansubs: A Critical Look at Anime Online in Light of Current Issues in Copyright Law, in SCRIPT-ed 544, 561-62 (2005), available at http://www.law.ed.ac.uk/ahrb/script-ed/vol2-4/hatcher.asp (noting that fansubbers make the same arguments that their activities are only technically illegal, but help copyright owners by building interest in shows and serving as advertising for the official versions).
43. See, e.g., Arica Inst., Inc. v. Palmer, 970 F.2d 1067, 1078 (2d Cir. 1992) (determining that plaintiff's work was "a published work available to the general public," and that the second factor thus favored defendant).
44. For an extended discussion of the copyright implications of fan videos, see Sarah Trombley, Visions and Revisions: Fanvids and Fair Use, CARDOZO ARTS & ENT. L.J. (forthcoming 2007).
45. One science fiction writer, Sherwood Smith, described the appeal of vids in language that resembles an analysis of transformative fair use: "Some [fanvidsc] are astonishing, even if you haven't the remotest knowledge of the original storyline, and when you have, the effect is a powerdrive through the emotions, accelerated by the music and the images, setting off brainbombs of previous experience in the middle of this new one." Fanon, http://sartorias.livejournal.com/153912.html (May 18, 2006, 06:47). Fan videos are related to the parody trailers for movies that are easy to find on sites like YouTube. Parodies using the format of Brokeback Mountain to suggest homosexual themes in other movies, such as Brokeback Top Gun and Brokeback to the Future, have been particularly popular.
46. See, e.g., Bob Mondello, Not Coming to a Theater Near You: Satire Trailers, NPR, Feb. 10, 2006, http://www.npr.org/templates/ story/story.php?storyId=5200607. Fanvids, by contrast to these individual parodies, are usually made by fans who have a long-term interest in the shows or movies they use and are produced in the context of a fan community, so they can be shared in forums dedicated to the "source" or to fan vidding generally.
47. See Video: Razzle Dazzle (Killa, T. Jonesy & Hafital) (on file with author).
48. See Video: You're So Vain (T. Jonesy) (on file with author).
49. See Shalott and Melina, The Mountain, http://www.intimations.org/ vidding/ (last visited Feb. 23, 2006).
50. Flummery, Metavid Notes (Walking on the Ground), Oct. 14, 2005, http://www.livejournal.com/users/flummery/22648.html#cutid1.
51. Id.
52. See Boyle, supra note 31, at 108;
53. see also id. at 110 (arguing that the environmental movement popularized once-technical concepts and turned the abstract concept of the environment into a legal and political force). Walking on the Ground concretizes the diffusion of authorship and the possibilities for unexpected innovations from creative appropriation using new technologies (and some old ones).
54. Cf. Rose, supra note 4, at 161 (suggesting that the interactive works available on the internet teach that "it may be the 'spaces,' rather than the products from these spaces, that most require a rethinking of intellectual property protection"; activities and processes are crucial to common property regimes, though we usually focus only on output in analyzing property rights).
55. See Vicki L. O'Day & Bonnie A. Nardi, An Ecological Perspective on Digital Libraries, in DIGITAL LIBRARY USE: SOCIAL PRACTICE IN DESIGN AND EVALUATION at 65, 74-76 (Ann Peterson Bishop et al. eds., 2003).
56. See id. at 76;
57. cf. Rose, supra note 4, at 178-79 (discussing limited property commons regimes with fuzzy boundaries).
58. See O'Day & Nardi, supra note 46, at 76.
59. See id. at 78-81.
60. See Yochai Benkler, Sharing Nicely: On Shareable Goods and the Emergence of Sharing as a Modality of Economic Production, 104 YALE L.J. 273, 342-43 (2004).
61. O'Day & Nardi, supra note 46, at 77 (arguing that librarians serve as keystones in libraries).
62. See, e.g., ASSOCIATION OF INDEPENDENT VIDEO AND FILMMAKERS ET AL., DOCUMENTARY FILMMAKERS' STATEMENT OF BEST PRACTICES IN FAIR USE (2005), http://www.centerforsocialmedia.org/rock/backgrounddocs/ bestpractices.pdf.
63. According to Marjorie Heins and Tricia Beckles, principles developed by the affected groups "are better than negotiated guidelines because they reflect the consensus of a creative community and do not contain numerical limits that are inconsistent with the flexibility of fair use law." MARJORIE HEINS & TRICIA BECKLES, WILL FAIR USE SURVIVE? FREE ExPRESSION IN THE AGE OF COPYRIGHT CONTROL 55 (2005).
64. See Mark F. Schultz, Fear and Norms and Rock & Roll: What Jambands Can Teach Us About Persuading People to Obey Copyright Law, 21 BERKELEY TECH. L.J. 651 (2006).
65. Sharing copies for money is not enough to trigger those norms, even though both parties benefit from the transaction. Perhaps the market context overwhelms the gift aspect of the exchange so that the fans do not feel they are getting a little something extra, which is the grace note necessary to trigger reciprocity norms. See generally LEWIS HYDE, THE GIFT: IMAGINATION AND THE EROTIC LIFE OF PROPERTY (1983) (discussing the relationship between gift-giving and creativity).
66. See Schultz, supra note 53, at 677-80.
67. See id. at 681-88.
68. I thank Mark Lemley for pressing me on this point.
69. See U-MYX-Get Inside the Music, http://www.u-myx.com/ (last visited July 27, 2006). U-Myx's remixes can only be played by others with U-Myx software, so it is not exactly a nonproprietary system.
70. See, e.g., Simone Murray, "Celebrating the Story the Way It Is": Cultural Studies, Corporate Media, and the Contested Utility of Fandom, 18 CONTINUUM: J. OF MEDIA & CULTURAL STUDIES 7, 7-8 (2004) (discussing movie studios' increasing willingness to engage with fans in pursuit of better sales). Fans' ability to see beyond the broadcast footage is not completely new, as "making-of" and "behind the scenes" featurettes have been common aspects of movie promotion for decades, but insights into the production process for almost any show or movie are becoming commonplace, in part as a way of adding value to DVD sets.
71. Jambands' decisions to reach out to fans, to treat them as friends, reduces the social distance between band and listener and increases cooperation. See Schultz, supra note 53, at 60-61. The musicians seem sympathetic and knowable. Fans therefore identify with them and adhere to their reasonable requests about limiting copying.
72. Cf. Krissi J. Geary-Bohm, Cyber Chaos: The Clash Between Band Fansites and Intellectual Property Holders, 30 S. ILL. U. L.J. 87, 118 (2005) (arguing that content owners should recruit fans and actively try to shape fandom norms to inculcate respect for copyright owners' claims);
73. Murray, supra note 59, at 18 (describing an incident in which a fan site leaked photos of visual effects from the Lord of the Rings trilogy and the studio responded with a successful appeal to "fan community common interests," emphasizing how upset the visual effects director was with the leak; one fan commented, "It's one thing if the suits in Los Angeles [threaten] to sue you. But if you hear the guys in the trenches are saddened, it really gets to you.").
74. An ethic of equity can develop without contact between initial creators and audience. Sean Leonard's studies of English-speaking fans who translate and distribute Japanese anime reveals that such fansubbing groups routinely discontinue distribution of a translated anime series when a Japanese copyright owner announces that its own English translation will soon be marketed. See Sean Leonard, Celebrating Two Decades of Unlawful Progress: Fan Distribution, Proselytization Commons, and the Explosive Growth of Japanese Animation, 12 UCLA ENT. L. REV. 189 (2005);
75. see also Hatcher, supra note 35, at 562;
76. Sean Kirkpatrick, Like Holding a Bird: What the Prevalence of Fansubbing Can Teach Us About the Use of Strategic Selective Copyright Enforcement, 21 TEMP. ENVTL. L. & TECH. J. 131, 149-50 (2003). Fansubbers devote significant creative energy to translating and captioning anime so they can share it with people who would otherwise lack access, but they believe that it is only fair to leave the field when the copyright owner invests in the English-speaking market as well.
77. See Schultz, supra note 53, at 58.
78. For example, Raymond Feist, Laurell Hamilton, Robin Hobb, and other individual authors have explicitly objected to fan fiction. See generally Fan Fiction Policies, http://www.fanworks.org/ writersresource/?tool=fanpolicy (last visited Feb. 23, 2006) (listing various authors' and actors' attitudes towards fan fiction).
79. See Leanne Stendell, Comment, Fanfic and Fan Fact: How Current Copyright Law Ignores the Reality of Copyright Owner and Consumer Interests in Fan Fiction, 58 SMU L. REV. 1551, 1556-57 (2005) (discussing some notable failures of attempted suppression).
80. Cf. Hatcher, supra note 35, at 563 (noting that anime fans have varying views of the ethics of fansubbing, and some do not care if they are harming the copyright owner's markets). Some fans claim to purchase the DVDs as soon as they are available, downloading episodes only as a gap-filler to sustain obsessive rewatching. As iTunes and other sources make immediate authorized downloads ever more available, they will put such claims to the test.
81. As Hatcher notes about fansubbers, fans who write stories, draw pictures, or make music videos featuring copyrighted characters "often actively debate the ethics of what they do" and have some ideas about copyright law, though those ideas may be more or less accurate. Hatcher, supra note 35, at 561.
82. As with any group, fans exhibit a range of views about what it is fair to do with others' works, though some are more widely held than others. A recent fan convention held a panel on effort and ownership in fandom exploring some of the complexities. See Cofax, Escapade Panel Notes, Part 1, http://cofax7.livejournal.com/320855.html (Mar. 2, 2006).
83. 539 U.S. 23 (2003).
84. Id. at 27-29.
85. Id. at 38.
86. Id. at 26.
87. Jonathan Band & Matt Schruers, Dastar, Attribution, and Plagiarism, 33 AIPLA Q.J. 1, 15 (2005).
88. Dastar, 539 U.S. at 36.
89. For scholarly responses to Dastar's claims about the proper roles of copyright and trademark in regulating attribution, see, for example, Jane C. Ginsburg, The Right to Claim Authorship in U.S. Copyright and Trademark Law, 41 HOUS. L. REV. 263, 306-07 (2004);
90. Laura A. Heymann, The Birth of the Authornym: Authorship, Pseudonymity, and Trademark Law, 80 NOTRE DAME L. REV. 1377, 1378 (2005);
91. Greg Lastowska, The Trademark Function of Authorship, 85 B.U. L. REV. 1171 passim (2005).
92. See U.S. COPYRIGHT OFFICE, REPORT ON ORPHAN WORKS 82, 110 (2006) ("only a handful" of comments, proposed an attribution requirement), available at http://www.copyright.gov/orphan/ orphan-report-full.pdf.
93. See id. at 110-12.
94. See id. at 123;
95. see also HEINS & BECKLES, supra note 52, at 28 ("Clay Shirky uses Creative Commons licenses, but he tries to stop outright plagiarism. 'One time, some guy from Singapore stole a bunch of my articles. It wasn't fair use, because it was the whole article. I went directly to the guy. And that was enough - it disappeared, because it was embarrassing to him. He was doing it to increase his credibility, not to derive money from it. And so if his credibility was damaged by being discovered, that was enough of a remedy.'").
96. Though the measurement methodology is unclear, see Niva Elkin-Koren, What Contracts Cannot Do: The Limits of Private Ordering in Facilitating a Creative Commons, 74 FORDHAM L. REV. 375, 401 n.85 (2005), Creative Commons reports that ninety-five percent of its licenses require attribution,
97. see Neeru Paharia, License Distribution, http://creativecommons.org/weblog/entry/5293 (Feb. 25, 2005). By contrast, one-third of such licenses prohibit derivative works.
98. See id.
99. See, e.g., Copyright Amendment (Moral Rights) Act 2000 § 42 (Austl.) (amending Copyright Act 1968) (requiring "sufficient acknowledgment" for use of literary, dramatic, musical or artistic work for "reporting of news in a newspaper, magazine or similar periodical");
100. Copyright, Designs and Patents Act, 1988, ch. 48, § 30(1)-(2) (U.K.) ("Fair dealing with a work for the purpose of criticism or review, of that or another work or of a performance of a work, does not infringe any copyright in the work provided that it is accompanied by a sufficient acknowledgement. Fair dealing with a work (other than a photograph) for the purpose of reporting current events does not infringe any copyright in the work provided that (subject to subsection (3)) it is accompanied by a sufficient acknowledgement.");
101. Copyright Act, R.S.C., ch. C-42, § 29.1-.2 (1985) (Can.) (requiring for the purposes of criticism or review and news reporting that "(a) the source; and (b) if given in the source, the name of the (i) author, in the case of a work, (ii) performer, in the case of a performer's performance, (iii) maker, in the case of a sound recording, or (iv) broadcaster, in the case of a communication signal" be mentioned).
102. I thank Francesca Coppa for this insight.
103. This is consistent with Henry Farrell's suggestion that norms of attribution and credit may even be in tension with commercial endeavors. For example, newspapers do not wish to acknowledge other papers' scoops for fear of losing business to them. See Posting of Henry Farrell to Crooked Timber, http://crookedtimber.org/2006/05/30/ norms-and-networks/ (May 30, 2006, 09:34).
104. Cash can do similar things; a continuing royalty is only valuable to the extent that audiences buy a work. The point is that the idea of "credit" makes the relationships between successive creators and their audiences over time particularly salient.
105. See Ellen Gruber Garvey, Scissorizing and Scrapbooks: Nineteenth-Century Reading, Remaking, and Recirculating, in NEW MEDIA, 1740-1915 (Lisa Gitelman & Geoffrey B. Pingree eds., 2003).
106. See, e.g., Mark A. Lemley, Rights of Attribution and Integrity in Online Communications, 1995 J. ONLINE L. art. 2, ¶ 11 (1995), http://www.wm.edu/law/publications/jol/95_96/lemley.html.
107. See HEINS & BECKLES, supra note 52, at 27;
108. see also id. at 25 (quoting an assistant professor of visual and performing arts: "[I]f I'm not making money, then it's probably okay as long as I cite or I use things appropriately"; a photographer: "If somebody was to use my image and credit me, I'd be like, 'Thank you. No problem.' If they were to not credit me, then I'd start having a big problem because I would like to be recognized for it.").
109. See Emmanuelle Fauchart & Eric von Hippel, Norms-Based Intellectual Property Systems: The Case of French Chefs 17-18 (MIT Sloan Working Paper 4576-06, Jan. 2006), available at http://ssrn.com/abstract=881781. The culture among high-end American chefs, however, may be diverging, as restaurants put more of a premium on innovation; lacking copyright protection, some chefs are attempting to use patents and confidentiality agreements to protect their signature recipes.
110. See Katy McLaughlin, "That Melon Tenderloin Looks Awfully Familiar," WALL ST. J., June 24, 2006, at P1.
111. See Frequently Asked Questions (and Answers) about Fan Fiction, http://www.chillingeffects.org/fanfic/faq.cgi#QID305 (last visited Feb. 22, 2006);
112. see also Stendell, supra note 63, at 1578 (suggesting that a disclaimer on a fan fiction story might be required as a precondition for a finding of fair use).
113. Archive websites may be more likely than individual fans' sites to carry disclaimers. For an example of an archive site (focused on the work of Stephen R. Donaldson) that requires archived stories to carry a specified disclaimer, see Forbidden Space: Submission Rules, http://space.wizards.pro/submission.php (last visited Feb. 22, 2006).
114. Francesca, Moving On, http://www.trickster.org/francesca/ movingon.html (last visited July 7, 2006).
115. Esther Saxey, Staking a Claim: The Series and Its Slash Fan Fiction, in READING THE VAMPIRE SLAYER 187, 208 (Roz Kaveney ed., 2002).
116. See Rose, supra note 4, at 156 (noting that new entrants to expanded Internet communities may not be socialized in earlier participants' norms).
117. The authorized one is the one with the footnote that says that Kirk and Spock were not lovers. See STAR TREK: THE MOTION PICTURE (authorized novelization).
118. Disclaimers in fan fiction are something like the "mouseprint" in ads, which is not, really for consumers, who tend to skim over it, but which works as a signal to regulators and competitors that the advertiser is aware of various legal requirements.
119. See Lucy Gillam, Poaching the Poachers, THE FANFIC SYMPOSIUM, http://www.trickster.org/symposium/symp156.html (last visited Feb. 23, 2006) (noting that "no one thinks I, [created] that" is a reasonable fan response to charges of plagiarism for copying from mainstream media);
120. The Brat Queen, http://thebratqueen.livejournal.com/244181.html (Apr. 30, 2003, 11:24:00) (opining that copying from fellow fans is wrong because intrafan copying leads to false attribution; "Everybody knows a screenshot of Xander ultimately belongs to Mutant Enemy. You cannot be in the Buffy fandom without being aware of that. You can, however, be in the Buffy fandom without knowing [a particular fan artist'sc] work when you see it. To show her work without giving her credit or, worse, flat-out claiming it for your own is to have stolen from her.").
121. See, e.g., Ever After, http://tired-eye.net/videos/everafter.php (last visited Jan. 11, 2006) ("All video material has been heavily edited and manipulated, therefore using any part of my videos as source material in your own work will be classed as clip theft. Action will be taken against you through forum leaders and/or hosts, and your name will be published below.");
122. Posting of "Davy's Wench Macbeth" to Fan Fiction Forum, http://forum.mediaminer.org/index.php?t=msg&goto=620709& (July 26, 2004, 23:39);
123. The Lois & Clark Fanfic Archive FAQ, http://www.lcfanfic.com/ faq_archive.html# plagiarism (last visited Dec. 13, 2005).
124. See Stuart P. Green, Plagiarism, Norms, and the Limits of Theft Law: Some Observations on the Use of Criminal Sanctions in Enforcing Intellectual Property Rights, 54 HASTINGS L.J. 167, 173, 239 (2002).
125. Cf. Fauchart & von Hippel, supra note 84 (discussing French chefs attribution practices, which are internal to the chefs' community). Fan creators do not always got the credit they want, and the desire for more recognition is as common within fan cultures as without. One fan has suggested that young fans who only watch vids and do not create them do not have a sense that vids are made by particular authors, just as they do not have a sense that other works, like books and essays they study in school, have particular authors. These young fans' recognition of authorship is generally impaired.
126. See Here's Luck, http://heresluck.livejournal.com/23817.html (Jan. 17, 2003, 18:13:00). The implication is that becoming a creator - even a fan creator making derivative works - is a way to learn about the duties and deserts of authorship, which are otherwise hard to discover in modern society.
127. Cf. Adrienne Russell et al., Networked Public Culture, http://netpublics.annenberg.edu/about_netpublics/networked_public_culture (last visited July 15, 2006) (referencing "a tacit understanding in the age-old practice of telling jokes: 'If you repeat it, you own it.'"). As Francesca Coppa has discussed, media fans' creative practices resemble performance, with its overt repetition and variation, much more than the kinds of individual texts literary theorists have usually analyzed.
128. See Coppa, supra note 7, passim (2006).
129. See Hatcher, supra note 35, at 555, 564;
130. cf. Farrell, supra note 79 (attribution among bloggers means that "when one has come across a particular piece of source material thanks to another blogger, one should credit the blogger in question");
131. Geary-Bohm, supra note 60, at 90 ("Some [fansite creatorsc] wrongfully attribute another fansite where they obtained the copyrighted or trademarked materials rather than the true IP holders.").
132. See Rose, supra note 4, at 132 (defining limited common-property regimes as those in which property is held as a commons among members, "but exclusively vis-à-vis the outside world").
133. Rose, supra note 4, at 156;
134. see id. at 156-57 ("[I]n the absence of effective formal copyright law, authors themselves cultivated a norm recognizing 'genius' in order to protect their own literary efforts.");
135. cf. Murray, supra note 59, at 21 (discussing the "curiously proprietorial substratum of much libertarian fan 'poaching' rhetoric").
136. Interestingly, French chefs have similar community norms: It is wrong to copy another chef's creation exactly, but perfectly legitimate to develop a variation on that recipe. See Fauchart & von Bippel, supra note 84, at 16.
137. Gillam, supra note 92. Editing changes include altering timing color, opacity, and numerous other attributes of the source, as well as adding transitions, overlaying different clips, and juxtaposing images.
138. See id.
139. See Rose, supra note 4, at 161.
140. Sometimes ownership claims are even made using the legal language of copyright and trademark. Murray notes that online fan fiction for the Lord of the Rings trilogy often contains the "©" symbol, various Lord of the Rings fansites claim trademark rights in their names, and disclaimers may simultaneously disavow infringement on the original source while claiming ownership of newly added content: Copyrights and trademarks for the books, films, articles, and other promotional materials are held by their respective owners and their use is allowed under the fair use clause of the Copyright Law. Design and original photography however are © 1999-2003 TheOneRing®.net. TheOneRing® is a registered service mark with exclusive right to grant use assigned to The One Ring, Inc.
141. Murray, supra note 59, at 21 n.12.
142. See also Geary-Bohm, supra note 97, at 114 (discussing a fansite whose operator asks fans to contact him for permission to use materials on his site, both ones he created and ones he copied from official sources). Copyright owners often say they fear an expensive lawsuit if a fan's work happens to be similar to an authorized sequel, which is why they try to prohibit fan fiction.
143. Cf. id. at 114-15 (identifying a fan who, while crediting a band with the lyrics of its songs - which may be inaccurate if the musical works was composed by another songwriter - claims rights to "the exact lyrics typed up on this site," requiring a link back to the site if another fan wants to copy them).
144. See Band & Schruers, supra note 71, at 16-17.
145. American Historical Association, Statement on Standards of Professional Conduct, http://www.historians.org/pubs/Free/ProfessionalStandards.cfm (last visited Dec. 14, 2005) ("[I]n some contexts - such as textbooks, encyclopedia articles, broad syntheses, and certain forms of public presentation - the form of attribution, and the permissible extent of dependence on prior scholarship, citation, and other forms of attribution will differ from what is expected in more limited monographs. As knowledge is disseminated to a wide public, it loses some of its personal reference. What belongs to whom becomes less distinct.").
146. See Fauchart & Von Hippel, supra note 84, at 27-28 (discussing French chefs and fashion designers; mass marketers in each field will copy from haute couture or cuisine, but unauthorized copying within the higher-status group violates community norms);
147. Catherine L. Fisk, Credit Where It's Due: Ae Law and Norms of Attribution, 95 GEO. L.J. 49, 76-101 (2006) (discussing several examples of attribution regimes, including moviemaking, academic and scientific publishing, and politics, which have attribution norms that vary by context).
148. Copyright Registration for Tattoo, http://www.needled.com/archives/2006/ 03/copyright_registration_for_tat.php#more/ (last visited Mar. 14, 2006).
149. Posting of Shannon Larratt to ModBlog, http://modblog.bmezine.com/ entries/200509250855.html (Sept. 25, 2005, 12:55). Of course, this position is far from uncontested; some tattoo artists are happy to copy other tattoos as well as other cultural objects.
150. See, e.g., Posting of Shannon Larratt to ModBlog, http://modblog.bmezine.com/entries/200509231728.htm (Sept. 23, 2005, 21:28). Norms are rarely universal (and sometimes people cheat on them even if they purport to be bound by them).
151. A powerful criticism of that split regime is that the lack of protection for foreign works decreases incentives to produce a native or domestic literature because publishers will not pay native authors for rights to their works when they can freely reprint the works of a foreign author, and that books by foreign authors depress the overall market price native authors could demand. When, as with media fandom, the internal literature is produced by nonmarket incentives, that problem does not arise, though whether it exists in the tattoo market - which also features large amounts of standard tattoos, known as "flash"-is an interesting question.
152. See Anne Baron, Introduction: Harmony or Dissonance? Copyright Concepts and Musical Practice, 15 SOC. & LEG: STUDIES 25, 34 (2006) ("The [scampler] has to have a solid grasp of musical history, and this makes sampling 'an extension more of fandom than of musicianship."') (citation omitted).
153. Id.
154. As Francesca Coppa pointed out to me, the social consensus about credit might be morally questionable, as when white performers take credit for popularizing African American forms of music, and a consensus might also change over time as political and social trends lead to different origin stories. This is another reason that using law to enforce credit-tracing norms might not be a good idea.
155. In Scalia's case, the important factor is less that the relevant readers generally know that courts often copy felicitous phrases from briefs (though we do know that), but that the fundamental business of courts is to render decisions and explain them. It is nice if the opinions are well written, but this is not necessary to the enterprise. He is not a plagiarist because his role is not about getting credit for his writing, which is also why scholars almost never discuss law clerks when they analyze judicial rhetoric - the what is generally far more important than the who. If a judge renowned as a prose stylist turned out to have a secret ghostwriter, that could fall into the category of plagiarism, but unsourced borrowing of bits and pieces from different briefs does not qualify.
156. The creator, in the romantic sense, and the corporate copyright owner may even have different beliefs about the legitimacy of unauthorized fan creations. Joss Whedon thinks of fan creations as a natural outgrowth of fans' love for the show, whereas Fox - which owns the copyrights - has no such sympathy. See Murray, supra note 59, at 11.
157. See Because AUs Make Us Happy, http://strangeplaces.net/challenge/ five.html (last visited Dec. 13, 2005) (collecting "Five Things That Never Happened" stories, which are a type of alternate universe story in which five often mutually contradictory possibilities are explored by a single author);
158. Susie Lute & Kristina Busse, "My Slash is More Canon Than Yours": Negotiating Authority in Harry Potter Fan Fiction, at 8 (unpublished paper, on file with author) ("[T]he writers of any given fandom collectively create a space that resurrects all potential meanings and interpretations and, by writing them all into being, allows them to coexist.... [T]he collective product is the fantext, a collossal work-in-progress that charts particulars and potentiality rather than foreclosing them with a voice of authority.").
159. Using the original for an entirely different purpose, a datum in a larger collection, can also be transformative. See Kelly v. Arriba Soft Corp., 336 F.3d 811 (9th Cir. 2003). But when a defendant's claim is to have transformed a single work, courts look for something within that work that is highlighted or explored by the infringing use.
160. Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569, 580 (1994).
161. In Campbell, for example, the dissenting judge on the court of appeals wrote that the parody "reminds us that sexual congress with nameless streetwalkers is not necessarily the stuff of romance and is not necessarily without its consequences. The singers ... have the same thing on their minds as did the lonely man with the nasal voice, but here there is no hint of wine and roses." 972 F. 2d 1429, 1442 (6th Cir. 1992) (Nelson, J., dissenting), quoted in Campbell, 510 U.S. at 582. Because of the later song, we can recognize that Orbison's narrator always had the "same thing" - sex - on his mind as the later singers, even though he obscured his real desires with talk of wine and roses.
162. See Mattel, Inc. v. Walking Mountain Prods., 353 F.3d 792, 801-02 (9th Cir. 2003);
163. Mattel, Inc. v. Pitt, 229 F. Supp. 2d 315, 322 (S.D.N.Y. 2002) ("As a result of Barbie's origins, Defendant argues, 'sex is inherent in the doll...' and ... she is simply revealing this sexual nature by placing Barbie in a 'modern erotic context.'").
164. SunTrust Bank v. Houghton Mifflin Co., 268 F.3d 1257, 1270 n.26 (11th Cir. 2001). The court found insight into Randall's transformativeness by quoting Mitchell's novel: Randall's parodic intent vis-à-vis Ashley becomes manifest when the two works are read side-by-side. Mitchell has Gerald describe Ashley Wilkes: 'The Wilkes are different from any of our neighbors - different from any family I ever knew. They are queer folk, and it's best that they marry their cousins and keep their queerness to themselves.... And when I say queer, its not crazy I'm meaning ... there's no understanding him at all ... tell me true do you understand his folderol about books and poetry and music and oil paintings and such foolishness?" Later, Mitchell describes how "Scarlett turned her prettiest smile on Ashley, but for some reason he was not looking at her. He was looking at Charles ...."
165. Id. (citations omitted). Despite what the court says, it is not reading the two works side by side. It is reading Gone with the Wind and seeing a subtext about homosexuality, which it then allows Randall to make explicit. The court observes that "Suntrust makes a practice of requiring authors of its licensed derivatives to make no references to homosexuality,"
166. id., even as it has just suggested that reference to homosexuality is already present in the original.
167. See DICTIONARY OF AMERICAN SLANG 41S (Harold Wentworth & Stuart Berg Flexner eds., 1967).
168. For a fascinating discussion of the complexities of bringing meaning to texts as opposed to exposing subtextual meaning, see Ika Willis, Keeping Promises to Queer Children: Making Space (for Mary Sue) at Hogwarts, in FAN FICTION, supra note 7, at 153.
169. Quite suggestively, Willis identifies fans' abilities to write "queer" versions of mainstream texts as an "immoral right," relying on Roland Barthes. Id. at 167, 168.
170. Miscegenation, the other taboo topic, is even more deeply buried in Gone with the Wind. One might say that, in a slave society, miscegenation is inevitably part of the context.
171. A similar concern with unfair attribution led the founders of Creative Commons to consider a "disavowal clause," allowing authors to require removal of their names from offensive reuses of their Creative Commons-licensed works. See Kelty, supra note 8, at 551-52.
172. A variant on this problem comes from comic-book writer Alan Moore's staunchly antagonistic stance towards DC Comics, which owns the rights to two of his most successful projects, Watchmen and V for Vendetta. Upset over statements made by a producer of the V for Vendetta movie adaptation, Moore demanded that his name be removed from the film credits as well as from any reprints of his work DC might produce in the future. The film producers took his name off, but DC refused to agree, pointing out that the reprints weren't derivative works or adaptations but the exact works Moore produced. See Dave Itzkoff, The Vendetta Behind "V for Vendetta," N.Y. TIMES, Mar. 12, 2006, at 1. Moore does not want to be associated with DC in any way, but his contracts bind him (at least until thirty-five years have passed and he can reclaim his rights under the reversion provisions of the Copyright Act).
173. See Lute & Busse, supra note 116, at 3 (noting that many fans believe that fan fiction's characterizations should "tilt" a canon character but should also make the connection to the canonical version clear). Not all fans use canonical characterization as a starting point. Some just want to play in what they consider a common playground, using characters whose attributes are recognizable enough that they will have an audience for their works.
174. See Fisk, supra note 107, at 49 (discussing the distinct credit and blame functions of attribution);
175. Kristina Busse, Rowling's Ghost Effect: Reading and Authority in Harry Potter Fanfiction, at 5 n.8 (June 15, 2005) (on file with author) (noting that the position of "author" in a world of intertextuality "is both empowering in that the author becomes founder of all that the initial text effects at the same time as it is disempowering insofar as the author control control or dictate these consequent works").
176. WILL BROOKER, USING THE FORCE: CREATIVITY, COMMUNITY AND STAR WARS FANS 133 (2002). Brooker recognizes that there are significant practical differences between authorized and unauthorized revisionings, including potential copyright problems as well as the stigma of writing "gay" fiction.
177. See id.
178. Cf. ERVING GOFFMAN, THE PRESENTATION OF SELF IN EVERYDAY LIFE 59 (1959) ("[T]he more closely the impostor's performance approximates to the real thing, the more intensely we may be threatened, for a competent performance by someone who proves to be an impostor may weaken in our minds the moral connection between legitimate authorization to play a part and the capacity to play it.").
179. Meri-oddities, Fannish Entitlement (Part of Cereta's Notcapade), http://meri-oddities.livejournal.com/57633.html?thread=703265#t703265 (last visited Feb. 27,2006).
180. See, e.g., Justin Hughes, 'Recoding' Intellectual Property and Overlooked Audience Interests, 77 TEX. L. REV. 923, 952-63 (1999) (suggesting that audiences have interests in stable meanings for texts that justify increased copyright owner control).
181. See Tatiana. Siegel, Superman Eschews Longtime Patriot Act, HOLLYWOOD, REPORTER, June 30, 2006, http://www.hollywoodreporter.com/thr/columns/ film_reporter_display.jsp?vnu_contentid=1002764635.
182. See, e.g., Dennis S. Karjala, Congestion Externalities and Extended Copyright Protection, 94 GEO L.J. 1065, 1076-78 (2006);
183. 43(B)log, http://tushnet.blogspot.com/2006/03/ recoding-and-audience-interests-in.html (Mar. 20,2006, 10:27).
184. See SUSAN SCAFIDI, WHO OWNS CULTURE? APPROPRIATION AND AUTHENTICITY IN AMERIAN LAW (2005) (arguing that audiences' reworkings and repurposing of celebrities' identities, like gay culture's appropriation of Judy Garland's image, might deserve as much protection as other cultural properties);
185. Rosemary Coombe, Author/Izing the Celebrity: Publicity Rights, Postmodern Politics, and Unauthorized Genders, 10 CARDOZO ARTS & ENT. L.J. 365, 388 (1992) ("Fans respect the original texts and regularly police each other for abuses of interpretative license, but they also see themselves as the legitimate guardian of these materials, which have too often been manhandled by the producers and their licensees for easy profits.");
186. Murray, supra note 59, at 13 (discussing Tolkien fans' reaction to the in-production Lord of the Rings movie trilogy as "the orthodoxy-policing and globally co-ordinated gatekeepers, past which [director Peter] Jackson's production team attempts to sneak artistic innovation").
187. See Elkin-Koren, supra note 76, at 378 ("[I}n the absence of a shared sense of free access, reliance on property rights may strengthen the proprietary regime in creative works. It may actually reinforce the property discourse as a conceptual framework and a regulatory scheme for creative works.").
188. See id. at 405 (arguing that allowing licensors to impose extra-copyright requirements could support other license terms, some quite troubling).
189. See Green, supra note 94, at 177-78 (arguing that, because plagiarism has historically been recognized even in systems without copyright protection, authorship does not have to be connected to property rights);
190. cf Fisk, supra note 107, at 117 (arguing that, in a world full of works for hire and transfers of copyright, the law should recognize attribution rights and interests as separate from exclusive rights to control copying and economic exploitation).
191. See Séverine Dusollier, The Master's Tools v. The Master's House: Creative Commons v. Copyright, 29 COLUM. J.L. & ARTS 271, 285-86 (2006) (Creative Commons licenses demonstrate that authorship is not naturally linked to control; instead, they situate authors as participants in a conversation about the meaning of their creations);
192. Elkin-Koren, supra note 136, at 387 (noting that Creative Commons licenses do not imply the return of the romantic author creating ex nihilo - rather, individual creators "are understood within a cultural context that gives them meaning and value").
193. See Sonia Katyal, Performance, Property, and the Slashing of Gender in Fan Fiction, 14 A.U. J. GENDER, SOC. POL'Y & L. 461 (2006).
194. See generally Litman, supra note 3.
195. See Herman et al., supra note 30, at 193 (noting participatory cultures "continually appropriate and remake what is produced and circulated by media corporations, while media corporations continually try to incorporate consumer productivity and creativity into prqfitable commodity forms").
196. See AL JEAN ET AL., WRITING FOR EPISODIC TV: FROM FREELANCE TO SHOWRUNNER 6-7, http://www.wga.orgluploadedFiles/writers_resources/ ep1.pdf.
197. See Laura Brennan, Writing the TV Spec Script, http://www.writing-world.com/screen/TV.shtml (last visited Oct. 1, 2006). See Anderson v. Stallone, No. 87-0592 WDKGX, 1989 WL 206431 (C.D. Cal. Apr. 26,1989).
198. See Sobhani v. ®adical.Media Inc., 257 F. Supp. 2d 1234 (C.D. Cal. 2003) (holding that an aspiring commercial director could not use fair use as a sword in an infringement suit against the copyright owner when the copyright owner copied a spec commercial that combined new and old material).
199. See Coppa, supra note 9, at 235: Newer shows (and older shows that have had time to evaluate the creative and economic value of their fan base) increasingly invite the creative participation of fans, and many seem to want to blur the lines between amateur and professional, fan and specialist. As an example, the Web site for the television series The Dead Zone, a show helmed by longtime Star Trek writer and producer Michael Hiller, offers to fans not only free copies of the aired scripts, but a writer's guide for the show and explicit instructions on how to send in your teleplay for professional consideration.
200. But it would not be impossible. See Chris Suellentrop, To Boldly Go Where No Fan Has Gone Before, WIRED, Dec. 2005, http://www.wired.com/wired/archive/13.12/startrek_pr.html (noting that Walter Koenig, the actor who played Chekov in the original Star Trek, is starring in an episode of an unauthorized fan-produced series).
201. See generally YOCHAI BENKLER, THE WEALTH OF NETWORKS: HOW SOCIAL PRODUCTION TRANSFORMS MARKETS AND FREEDOM (2006) (elaborating ways in which market and nonmarket methods of production interpenetrate and complement each other);
202. Busse & Hellekson, supra note 13, at 23;
203. Henry Jenkins, Quentin Tarantina's Star Wars?: Digital Cinema, Media Convergence, and Participatory Culture, in RETHINKING MEDIA CHANGE 281, 305 (David Thorburn and Henry Jenkins eds., 2003), http://web.mit.edu/cms/People/henry3/starwars.html ("[A]mateurs test the waters, developing new practices, themes, and generating materials which may well attract cult followings on their own terms. The most commercially viable of those practices are then absorbed into the mainstream media, either directly through the hiring of new talent or the development of television, video, or big screen works based on those materials, or indirectly, through a second-order imitation of the same aesthetic and thematic qualities. In return, the mainstream media materials may provide inspiration for subsequent amateur efforts, which, in turn, push popular culture in new directions.").
204. See JENKINS, supra note 27, at 164 (discussing fan communities as "training grounds for entry into the commercial media sector"; in video games, amateur-produced works are routinely now "taken up directly by commercial companies for distribution," while "the line between amateur and professional production is blurring as smaller start-up companies may build their games through the use of these same tools [provided free to gamers by game companiesc] and subsequently license with the original company to enable their distribution").
205. See John Jurgensen, Rewriting the Rules of Fiction, WALL ST. J., Sept. 16, 2006, at P1.
206. See Posting of Kristin1228 to LiveJournal, http://community.livejournal.com/vidding/730741.html (July 24, 2006, 22:09:00).
207. See Suellentrop, supra note 148 (noting that Star Trek. New Voyages creator calls his work "independent film" and, though he is a fan, plans to move on to other work if he cannot figure out how to make the Star Trek series pay). See http://www.newvoyages.com/ for the episodes.
208. See Jonathan Coulton, http://www.jonathancoulton.com/ (last visited July 26, 2006).
209. See supra text accompanying notes 57-59;
210. Stuart Elliott, Going Unconventional to Market Movies, N.Y. TIMES, Apr. 6, 2006, at c6; My Life in the Bush of Ghosts, http://bush-of-ghosts.com/remix/bush_of_ghosts.htm (last visited July 19, 2006) (David Bowie and Brian Eno's authorized fan remix site).
211. See Keller & Tushnet, supra note 24, at 997.
212. Thus, copyright owners are increasingly willing to tolerate fan creativity, even if they do not formally license it. This phenomenon leads to Murray's concern that fan practices are expanding only on copyright owners' sufferance. They may shut down the fans the moment it stops being profitable for them to have fans producing content. Murray, supra note 59, at 21. If we do not have a robust normative concept of fair use, copyright owners' earlier exploitation of fan-created works will show that a market for licensing such works exists and these works therefore fall within copyright owners' legitimate markets.
213. See Television Without Pity, http://www.televisionwithoutpity.com (last visited Oct. 1, 2006).
214. TWoP pins and magnets, for example, feature TWoP's Tubey television-shaped mascot, customized to fit various shows: Cigarette-Smoking Tubey for The X-Files ("I Went to Skyland Mountain and All I Got Was This Stupid Implant"), Idol Tubey for American Idol ("We Don't Accept Mediocrity, We Produce It"), Robot Tubey for Battlestar Galactica ("I Am a Toaster ... and I Have a Plan"), et cetera. See Deluxe Tubey Thingees, http://www.glarkware.com/securestore/c188252p16349139.2.html (last visited Feb. 22, 2006). The slogans and images are not directly taken from the shows but gain meaning from them.
215. As this article went to press, TWoP had just been purchased by Bravo, a major network whose shows are recapped on the site. See Permission to scream "Bravo!" in an annoyingly loud voice? BRAVO!, http://www.televisionwithoutpity.com/misc/bravo.html (last visited Apr. 10, 2007) ("TWoP will still be TWoP - that is to say, we'll be offering the same no-holds-barred commentary and critique we always have. Our new bosses dig what we do .... So, we'll continue taking shots at Aaron Sorkin, and we'll still be covering shows on FOX and CBS and so on.").
216. See Teenage Women of Propriety, http://www.glarkware.com/ securestore/c188252p16749345.2.html (last visited Feb. 22, 2006).
217. Joss Whedon's shows, for example, were on three different networks but shared many of the same viewers.
218. Cf. Lawrence Lessig, Creative Economies, 2006 MICH. ST. L. REV. 33, 34-35 (discussing commercial ventures that exploit expressive works but do not depend on ownership of intellectual property rights, including used bookstores and Google).
219. See Kevin J. Delaney & Ethan Smith, You Tube Model Is Compromise Over Copyrights, WALL ST. J., Sept. 19, 20069, at B1.
220. Like Terry Fisher. See William Fisher, Two Thoughts About Traditional Knowledge, 70 LAW & CONTEMP. PROBS. 131 (Spring 2007).
221. Henry Jenkins has commented on the power disparities in this indirect negotiation: "As we confront the intersection between corporate and grassroots modes of convergence, we shouldn't be surprised that neither producers nor consumers are certain what rules should govern their interactions, yet both sides seem determined to hold the other accountable for their choices. The difference is that the fan community must negotiate from a position of relative powerlessness and must rely solely on its collective moral authority, while the corporations, for the moment, act as if they had the force of law on their side." JENKINS, supra note 27, at 166-67.
222. For insightful discussions, see Posting of David J. Edery to Game Tycoon, http://www.edery.org (Oct. 19, 2006, 02:37 PST);
223. and Posting of Henry Jenkins tor Confessions of an ACA/Fan, http://www.henryjenkins.org (Nov. 2, 2006, 00:00 EST). For critical takes on Google and the like, see Posting of Nick Carr to Rough Type, http://www.roughtype.com (Oct. 23, 2006, 00:01 EST) ("By putting the means of production into the hands of the masses but withholding from those same masses any ownership over the product of their work, Web 2.0 [companies like YouTube and MySpace] provide an incredibly efficient mechanism to harvest the economic value of the free labor provided by the very, very many and concentrate it into the hands of the very, very few.");
224. Siva Vaidhyanathan, Me, "Person of the Year"? No Thanks, Dec. 28, 2006, http://www.msnbc.msn.com/id/16371425/ ("Google, for instance, only makes money because it harvests, copies, aggregates, and ranks billions of Web contributions by millions of authors who unknowingly grant Google the right to capitalize, or 'free ride,' on their work."). For a defense - one that depends on the nonmonetized, but nonetheless economically measurable, benefits that MySpace's users receive from creating content - see Posting of Ed Felten to Freedom to Tinker, http://www.freedom-to-tinker.com (Dec. 20, 2006).
225. See Delaney & Smith, supra note 164 ("YouTube in the future will explore options for sharing online ad revenue with smaller, or amateur creators, [YouTube's chief executive] said. But 'right now we're building tools for record labels, TV networks and movie studios.'"). Even if those future plans eventually materialize, it is unlikely they will give proportionate rewards to creators of unauthorized derivative works.
226. See Richard Siklos, Online Auteurs Hardly Need to Be Famous, N.Y. TIMES, Mar. 13, 2006, http://www.nytimes.com/2006/03/13/business/media/ 13user.html?_r=1&oref=slogin&pagewanted=all. Similar issues are arising in multiplayer video games.
227. See Herman et al., supra note 30, at 196 (discussing the online game Second Life's commitment to allowing individual users to own and profit from content generated in the game). Can a player make and sell "Old Navy" or "Versace" outfits?
228. See id.;
229. Se7en Recut, http://www.ebaumsworld.com/videos/seven-recut.html (last visited Mar. 13, 2006).
230. See Bob Mondello, Not Coming to a Theater Near You: Satire Trailers, NPR, Feb. 10, 2006, http://www.npr.org/templates/story/ story.php?storyId=5200607 ("The music is doHg a lot of the work in these re-cuts. All the best trailer-makers play with the fact that in the right circumstances, familiarity can breed confusion. Most Hollywood films fit so neatly into genres that a music cue is all it takes to position them.").
231. See Benkler, supra note 50, at 323-25 (2004) (discussing the crowding-out effects of commercialization on communities built around noncommodified production).
232. See Salil Mehra, Copyright and Comics in Japan: Does Law Explain Why All the Cartoons My Kid Watches are Japanese Imports?, 55 RUTGERS L. REV. 155 (2002);
233. Jennifer Granick, Harry Potter Loves Malfoy, Wired News, Aug. 16, 2006, http://www.wired.com/news/columns/1,71597-1.html.
234. Cf. VIVIANA ZELIZER, THE PURCHASE OF INTIMACY (2005) (discussing numerous ways in which affection and money are intertwined, and the distinctions between them nonetheless maintained).