Payment in Credit: Copyright Law and Subcultural Creativity

By Tushnet, Rebecca | Law and Contemporary Problems, Spring 2007 | Go to article overview

Payment in Credit: Copyright Law and Subcultural Creativity


Tushnet, Rebecca, Law and Contemporary Problems


I

INTRODUCTION

   Disclaimer: I don't own the rights to Chris (damn!), The X-Files,
   Millennium, Harsh Realm, The Lone Gunmen or any of the characters
   of those programmes. I don't own any of Chris's writings. In fact,
   I pretty much don't own any of the stuff written about, linked to,
   or shown on this site. Pretty much, all that's mine is the site
   itself, the art, and my own writings. All that other stuff belongs
   to Chris Carter, 1013 Productions, and Fox. Not mine. Please don't
   sue! (1)

This quote comes from a fan site dedicated to celebrating a set of mass media creations organized around Chris Carter, a television producer and writer. The site includes commentary, trivia, and artwork created by the site owner featuring characters from the shows. It expresses love for the original as well as a sense of distance and separate ownership of the fan-created supplementary works. This article explores these dynamics, which are common among media fans. Creators who make new works based on copyrighted characters and situations conceive of the rights and responsibilities of authorship in ways distinct from standard models of creativity under copyright. Although U.S. copyright law presumes that authors will be compensated in money or in control, fan practices use attribution, or credit, as a separate metric.

Fans' relation to mass media is not simply that of amateurs to professionals. Nor, as the disclaimer above makes clear, do they reject the concept of authorship. Fan practices are hybrids, mixing and matching authors' and copyright owners' rights to control uses, to receive payment, and to receive attribution. This hybridity invites us to consider the relationships between various modes of production, both market and nonmarket. Different forms of creativity cooperate and compete, ultimately strengthening one another. Comparing law to fan practices offers insight into the multiple ways intellectual property ownership, attribution, and authority can be regulated, borrowing from ecology a recognition of the "fragile, complex and unpredictable interconnections between living systems." (2)

As Jessica Litman points out, copyright owners find it incredibly useful to interpret current copyright doctrine to mean that the default is that any use of an existing work infringes unless specifically excepted. (3) This view was enabled by a variety of changes, including the end of the notice requirement, term extension, the expansive definition of derivative works, and the technicalities of public display and reproduction on the Internet. From this perspective, which is sometimes used by copyright minimalists to rail against current law, copyright has generalized in favor of control, sweeping all sorts of works and uses into an economic model of property rights.

Copyright lawyers talk and write a lot about the uncertainties of fair use and the deterrent effects of a clearance culture on publishers, teachers, filmmakers, and the like, but we know less about the choices people make about copyright on a daily basis, especially when they are not working. Thus, this article examines one subcultural group that engages in a variety of practices, from pure copying and distribution of others' works to creation of new stories, art, and audiovisual works: the media-fan community. Part II provides a brief overview of fan creativity. As Part III explains, fans justify their unauthorized derivative works as legitimate, no matter what formal copyright law says, with theories that draw on factors similar to those employed by fair use doctrine.

Part IV then discusses some differences between fair use and fan practices, focused around attribution as an alternative to veto rights over uses of copyrighted works. Part IV.A explains how different norms apply to different types of fan creations and how some norms distinguish between obligations regarding creations of fellow fans and obligations regarding creations from the outside, commercialized world. …

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