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4 Copyright Law, Fan Practices, and the Rights of the Author Rebecca Tushnet Fans of popular media who write stories about their favorite characters, draw pictures of them, and edit music videos reworking the original sources occasionally stop to think about whether what they are doing is legal under copyright law. Many fans assume that these creations are technically illegal—in copyright-specific terms, infringing—but not harmful to copyright owners and therefore not truly wrong, at least as long as fans keep relatively quiet about their creative practices (e.g., Brook n.d.). Others think that fan creations count as “fair use,” and thus as noninfringing, at least as long as no one is making any money from selling them (e.g., Gran 1999). Either way, fans tend to see their legal status as similar to their social status: marginal and, at best, tolerated rather than accepted as a legitimate part of the universe of creators. Shortly after I found online fandom, I wrote an article on the subject, which is now often cited in fan discussions, and occasionally in discussions with skeptics who find fan fiction immoral and infringing (Tushnet 1997). I concluded that most fan fiction, particularly that disseminated on the Internet, would be classified as fair use under U.S. copyright law.1 Since then, fan fiction has attracted more attention from “free culture” advocates who are concerned about copyright owners’ attempts to channel and control popular culture. Some copyright owners have also taken an aggressive stance against fan creativity, sending enough cease-and-desist letters threatening lawsuits to fan websites that the Electronic Frontier Foundation ’s anticensorship website, chillingeffects.org, has a section dedicated to fan fiction. 60 The formal legal landscape is more favorable to fans than it was nine years ago, as courts have been more willing to protect “transformative” unauthorized uses against copyright owners’ allegations of infringement. Transformative uses are uses that add new insights or meaning to the original work, often in ways that copyright owners don’t like. For instance, a book review that quotes a work in order to criticize it, or a retelling of a story that offers the villain’s point of view sympathetically or adds explicit sexual content, can be a transformative fair use. Recent cases emphasize that copyright owners can’t suppress unwanted interpretations of their works by asserting copyright. The most notable litigation involved a book by Alice Randall, The Wind Done Gone, which retold the story of Margaret Mitchell’s Gone With the Wind from the perspective of a new character, the mixed-race daughter of a slave and a master. A federal court of appeals held that Randall’s book was likely to be a fair use, largely because of the ways in which it criticized the racism of the original (SunTrust Bank v. Houghton Mifflin Co., 268 F.3d 1257 [11th Cir. 2001]). Legal doctrine is not all that matters, however. When copyright owners aggressively allege infringement, threatening fans with massive civil penalties , fans may naturally choose to shut down or hide their activities rather than stand their ground. The Wind Done Gone case involved a publisherdefendant whose monetary interests justified a full-scale defense. No similar cases from the fan community have been litigated. Despite the absence of cases, fan practices do offer lessons for copyright law. In particular, fan practices provide insights into moral rights, a category of author’s rights that is well recognized in Europe but has been far less successful in the United States. Various types of moral rights allow an author (or an author’s heirs) to control the attribution of a work, to withdraw it from circulation, or to protect it from mutilation or distortion by unwanted adaptations or alterations. Moral-rights theory posits a deep and unique connection between author and text such that an insult to the text is an assault on the author. Moral rights thus seem inherently in conflict with fans’ willingness to take liberties with source texts. Yet not all moral-rights claims are inconsistent with fan interpretive practices. Although protection against distortion conflicts with much fan creative activity, moral claims to attribution are widely recognized in fandom, and attribution rights are far less disruptive to ordinary interpretive practices than other kinds of moral rights. At the same time, fan practices demonstrate that attribution can come from context, while the law has tended to Copyright Law, Fan Practices, and the...

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