There's an interesting discussion on John Scalzi's blog on the foundation of the Organization for Transformative Works, which "is a nonprofit organization 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 f
orms."

The most heated discussion on Scalzi's blog, prompted by the emphasis of the original post, is about the legality of fanworks such as fan fiction.  I have a confession to make:  I read fan fiction.  In college, I even wrote fan fiction.  More embarrassingly, I wrote a substantial piece of unauthorized fan fiction derived from another piece of fan fiction.  Fortunately, the document only ever existed in one of my older computers and in a single print out, which was read by one friend.  As far as I know, neither copy exists.

Most fan fiction, and a lot of other fan produced works, lies in a massive legal gray area.  One of the declared goals of the OTW is to start a legal framework to defend the existence of fan works.  While I believe this is a noble goal, I also believe from a practical standpoint that the idea of forming an official group to work towards legal protection is counterproductive.  The discussion has given me some insight into American politics and culture as well as further given me evidence to theories I've held about American culture today.

The first observation is that, to an outsider, fandom always seems irrational.  The same goes for any deeply held interest, from sports to religion to politics. If you are not interested in something, people who are deeply interested  always appear odd.  I don't understand what makes people enjoy watching sports.  One commenter in the OTW discussion who took an interest in the political discussion stated upfront that he didn't understand fans and why fans insist on centering their creativity on works based around a commercial property like a series of books.

To generalize this, it's because hobbies and interests are not universally rational.  If you don't find football fun to watch, then it makes no logical sense on a personal level why people would devote time and money to watching football.  If you enjoy watching football, it's a perfectly logical use of your time and money to watch football.  Why some people find football enjoyable and others do not is a completely different discussion.

Compounding the situation is that for most people, hobbies and interests are more fun if you can get together and combine your interest with other people
who share the same interest.  While it's fun for me to ponder which anime characters would take which other characters in a fight, it's more fun to throw my ideas against others in a debate in someone's comment section.  Likewise, it's more fun to sit around a TV with friends rather than watch TV alone, whether it's anime on TV or a football game.  This isn't universally true for any combination of people, but it holds out fairly well.

With the specific interest of fan fiction, it's that you have an audience of fans that shares a common interest that binds the people together to make the work of writing a short fan story enjoyable.  You have an audience of people that share your interest ready to read what you have wrote.  Part of the idea of fan created works is that they don't just consume but they produce back for the community of fans.

The second observation is that it is increasingly hard to maintain control of a creative work in the hands of fans, as technology makes it easier to take creative works and use them in unexpected ways.  The wargame I play, Flames of War, officially has rules for the major countries in European theater of operations for 1942 - 1945.  This hasn't stopped players, fans, for releasing rules for minor countries, for 1939-1941, for the Pacific theater, for World War 1 and for modern warfare. Why?  Because they enjoy what they do and want to expand on it and contribute back to their hobby.  In some cases, the minor country rules have even been officially recognized.  Anime fans produce fan videos, fan art, and fan fiction.  Even sports fans turn statistics into fantasy leagues.  As long as you have fans, they will take what they can get and produce more things to share with other fans.

The problem is that increasingly the people who make decisions regarding creative property are not fans and, hence, do not understand what it is that the fans are doing.  Their reaction, while sometimes legally and morally justifiable, will often to seem clueless and arbitrary to fans that see and understand much of the breadth of what their fellow fans do.  Partially it's a business decision to maximize short-term quantifiable revenue.  You can assign a dollar value to the right to use a creative work commercially; you can't assign a dollar value to long-term fan loyalty.  One of the commentators in the OTW discussion commented that fan fiction was morally unjustifiable because it corrupts the creators visions of their works.  It's ironic that my previous trip to Scalzi's discussion forum was prompted by a discussion of the legacy of Robert Heinlein, including the abomination that was the Starship Troopers movie, which was a licensed and therefore morally justifiable corruption of Heinlein's legacy.

Despite my opinion that owners of creative rights need to give fans leeway to be fans and that this relationship is in the long run beneficial for both fans and owners, I believe the OTW initiative is the wrong idea.  Attempting to craft explicit legal protection for fan works will prove detrimental to fans.  Right now there exists a legal gray area between things that are explicitly legal and things that owners will enforce.  By starting a grab for the gray area in order to increase what is explicitly legal, it creates a strong incentive for owners to grab as much of the gray area and explicitly establishing their rights both by increasing enforcement of existing laws and by pushing for expansion of copyright protections which can only serve to further limit fair use.  The concentrated legal and lobbying power available to owners will always be greater than the OTW and similar organizations.  Owners can and should defend their rights when fans cross the line, but overzealous enforcement only serves to destroy the fan base in the long run.

Both sides need to use common sense.  Part of that common sense is understanding that the other side doesn't see things as you do, and that they might have a different opinion on certain actions.  It's not possible to draw a sharp legal line between what is morally right and wrong, and any sharp line is prone to abuse.  The best bet for all concerned is to take cases in the gray area on a case by case basis.

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Posted by: Civilis at 10: 01 PM | No Comments | Add Comment
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