Episode 4: Buncha Lawyers

Show Notes

[00:00:04] As always, our intro music is “Awel” by stefsax, used under a CC BY 2.5 license. The cover photograph is by Jonathunder, used under a CC BY SA 4.0 license.

[00:01:35] The article in question is at the New Statesman.

[00:03:37] Yep, the title is “Nature & Nurture,” by earlgreytea68.

[00:04:59] The Clone!Harry Styles fic: “The Other Harry” by knittingkneedle.

[00:05:24] earlgreytea68′s full response.

[00:07:21] deboflastyear’s full response.

[00:09:18] The fic is “The Epic Tale of Rodney & John, Two Girl Scout Cookies in Love,” by bitter_crimson, but that link is unfortunately broken—we haven’t been able to find in on the Wayback Machine, either. If you have a current link, please let us know!

[00:14:56] Even Language Log agrees that The Da Vinci Code is the worst prose ever published.

[00:18:45] The musical interlude is “Urbana-Metronica (wooh-yeah mix)” by spinningmerkaba, featuring Morusque, Jeris, CSoul, Alex Beroza, under a CC BY 3.0 license.

[00:19:35] Specifically, Betsy is a law professor at Whittier!

[00:20:53] The Adventuresses of Sherlock Holmes.

[00:22:39] The Organization for Transformative Works.

[00:23:18] The OTW’s legal advocacy.

[00:23:48] The Archive Of Our Own.

[00:23:49] Fanhackers!

[00:23:53] Fanlore!

[00:24:00] The Open Doors Project!

[00:24:01] Transformative Works and Cultures!

[00:24:16] For more about what happened with Ebooks Tree, try the OTW’s post about it or the F Yeah Copyright coverage.

[00:27:24] “Buffy Vs. Edward” by Jonathan McIntosh.

[00:27:26] “Strikethrough” was an incident where fanworks were taken down from LiveJournal. Learn more at Fanlore.

[00:40:11] The musical interlude is “Urbana-Metronica (wooh-yeah mix)” by spinningmerkaba, featuring Morusque, Jeris, CSoul, Alex Beroza, under a CC BY 3.0 license.

[00:43:52] FictionAlley.

[00:44:14] You can also access it at the best domain ever, IsFanficLegal.com! (The answer is “yes.”)

[00:44:02] Fanworks Are Fair Use. This is also a project of the Harry Potter Alliance!

[00:47:45] More information on The Wind Done Gone.

[00:52:29] The Daily Dot’s coverage of the Fifty Shades of Grey porn parody.

[00:53:19] F Yeah Copyright’s coverage of disclaimers.

[00:55:20] Turns out it’s spelled “laches,” not “latches.”

[00:56:44] Interestingly, Kindle Worlds still exists and is succeeding on some level, though not anywhere near the popularity of regular ol’ fanfic.

[00:57:04] Apparently Flourish doesn’t know what the difference between a TV show and a movie is. WHATEVER, THEY’RE BOTH MOVING IMAGES, OK?

[00:57:06] Yep, it was Kurt Vonnegut.

[00:58:43] We are talking to Jules! Get ready for some Aussie awesomeness!

[00:59:35] Outro music is “260809 Funky Nurykabe” by spinningmerkaba, under a CC BY 3.0 license.

Transcript

[Intro music]

Flourish Klink: Hi, Elizabeth!

Elizabeth Minkel: Hello, Flourish! [laughter]

FK: And welcome to Fansplaining.

ELM: Episode four! “Buncha Lawyers.”

FK: “Buncha Lawyers”! That’s the title of this episode. And we’re the podcast by, for, and about fandom, so they’re fandom lawyers. We’ll be talking to Betsy Rosenblatt, who is a fandom lawyer and works with the Organization for Transformative Works, and Heidi Tandy, who is half of F Yeah Copyright, and another…legal…fandomer…person. [laughter] Meh! You know, we can talk. Our podcast is just all about us talking. We’re good at it.

ELM: And we should note—

FK: We’re professionals!

ELM: Yes, we are professionals… 

FK: …sort of professionals… 

ELM: …professionals. We should say that Heidi is the person who’s responsible for bringing us together. She was the organizer of our panel at San Diego Comic-Con, so thank you, Heidi.

FK: Which is actually in fact where we met, which is kind of shocking. I feel like I’ve known you forever, Elizabeth.

ELM: It’s been a real roller coaster the last few months.

FK: [laughs] It’s been a roller coaster of literally one month. Literally one.

ELM: It’s been two!

FK: How has it been two?

ELM: It was the beginning of July and it’s now September.

FK: Yeah, you’re right. It’s been two.

ELM: Yeah, I got it. Don’t worry. [laughter] Oh my God, it was so funny. So I wrote that article about GeekyCon, and…I took a little while to write it, as you may have noticed. I took like two weeks!

FK: None of us noticed.

ELM: Two weeks.

FK: Nobody noticed that it took you two weeks to write an article about GeekyCon.

ELM: OK, so it went up exactly two weeks after GeekyCon—

FK: Uh-huh.

ELM: —and I can’t remember if it was the Harry Potter Alliance or GeekyCon itself tweeted it, and they were like, “It’s been almost a month since GeekyCon, and we miss it so much, this reminds us…” And I was like, “IT HAS NOT BEEN ALMOST A MONTH. IT HAS BEEN TWO WEEKS. Stop it.” It was like, they didn’t know they were shaming me.

FK: You were being so shamed. They didn’t even know.

ELM: But yeah, this summer’s flown by…anyway! OK, so, yeah, if you listened last week you may remember that we said we were going to have Amanda Brennan from Tumblr on. She couldn’t actually join us this week, so we’re going to have her on within the next two episodes, hopefully. But we were excited to talk to Betsy and Heidi this week, so we’ll get to them in a minute, but first, we need to debrief on Wattpad.

FK: Yeah, because we had a lot of thoughts coming at us about Wattpad from various places, some of whom sent us coherent emails, some of whom just sent us rants. Some of whom—

ELM: Who sent a rant? Coherent Tumblr responses. Did you get any rants?

FK: I got some rants.

ELM: I did not get anyone ranting at me. We got some really thoughtful responses, and maybe it’s just…it’s funny because in all of these podcasts, we talk to the people a lot more than what we’re able to air. This was especially true when we, kind of, maybe over-ambitiously invited two people on for two different segments. And we needed, you know, a full solid eighteen minutes to talk about Flourish’s Larry fic. [laughter] But because—

FK: OK, it was really important!

ELM: It was really—you should see the emails, she was like, “Can’t cut that out. I can’t do it.” Anyway, so, Flourish’s fanfiction aside—

FK: Thank you.

ELM: —I feel like, you know, we talked to Aron, Aron Levitz, for like an hour and a half, and what we wound up using was a very specific segment where we kind of… 

FK: We ended up using him to sort of…ha, we used him. Used him. We ended up picking out parts we thought would work for the episode, and there was a lot more there.

ELM: So the reason I bring it up is, I feel like the feedback that we got from people, privately and publicly, really seemed to kind of focus on these kind of technical writing aspects, and the aesthetics of the community, and I have to wonder if that’s because that’s what we presented, and that’s what people were responding to.

FK: Yeah, that came up a lot.

ELM: Why don’t we, instead of talking about it, why don’t we actually read the two that we have.

FK: Let’s do that.

ELM: Flourish, do you want to maybe read the first one? Which is from, can i just say, I know you’re—I don’t think you’re in fandoms that she writes in, but earlgreytea writes some of the best stories in the history of man. She’s in the Inception fandom now, but I know her from Sherlock, and she writes these incredible long, fluffy, beautiful, part-angsty AUs. And it’s the most—

FK: That sounds like something that would appeal to my interests.

ELM: There’s one called “Nature and Nurture”…nurture…N&N, one of those, it’s those words together, I may be flopping it around. And it’s about, there’s like a clone baby made of Sherlock without his permission, and they adopt it. Oh my God, it’s so good, you’re making a face but it’s so good.

FK: This is, this sounds a little bit like the clone Harry fic that I’m reading right now. Anyway. Move on. Uh… 

ELM: Look. Not everything is about One Direction.

FK: Everything’s about One Direction!

ELM: She’s an incredible writer, and I’m hoping that someday she comes on our podcast and talks to us about all the fandom things that she knows about. But she posted this thoughtful response that maybe you could read, Flourish.

FK: Before I get started reading, I should note that I’m going to cut a little bit out of this for time, but you can read her whole response—we’ve linked it in our show notes.

“So.” That’s how it starts.

“So.

“I have a lot of Wattpad thoughts. And if you follow me on Twitter, you know what those are. 

“But I think, reading this transcript, what it all boils down to is: I don’t feel welcome there? Not that I feel unwelcome, but it isn’t my community. I have a difficult time communicating there. I literally cannot understand some of the comments I get, because they’re using a slang I don’t know…I go to AO3, and I know what to do, how to interact, how to leave a comment or reply to a comment. I know how to connect AO3 to Twitter and Tumblr and I know how to use that to leverage into (hopefully) new friends as I enter new fandoms. I’m just at a loss when it comes to Wattpad. I don’t know how to do that...I can’t even figure out how to find fanfiction on Wattpad. ...Maybe it’s like your first Doctor: You always love your first fanfiction database most?

“Although, not true, because I think AO3 is way superior to any fanfic archive I used before, and I remember learning about AO3 and being like, ‘What is this?’ and having to learn it. So maybe if all of you lot decided you were moving to Wattpad, I’d have to move with you, and then eventually I’d be like, ‘Man, Wattpad is awesome, I meet the greatest people on Wattpad and read the best stories!’ But for now I just kind of poke around a little bit and then go back to AO3 where my transactional costs are less because I know what I’m doing already. ...I guess, after all, maybe I am just too old to learn new fandom tricks! Isn’t it enough I learned Tumblr for all of you? [Flourish wails]

“ETA: Actually, maybe it’s just about where your fandom is located? I happen to have fandoms that are active on AO3 and not on Wattpad, so this is probably why I feel unmoored at Wattpad...”

ELM: That was a really nice reading.

FK: I, uh, I got into it. I felt the character, and by the character, I meant earlgreytea, who is awesome.

ELM: We have another response. Should I read it before we comment on these guys?

FK: Do it.

ELM: All right, this is from deboflastyear, and this was more specific, so that’s why I wanted to share it, who said,

“That jumped out at me too, how Aron said that a lack of editing and misspellings is fine, because it’s about raw love and emotion of a topic that you want to write about. Because not editing, not spending 20 seconds to use Word’s spellchecker, signals to me, a reader, that you don’t actually love what you’re writing. ...But, all that said, I never read Wattpad, so maybe it’s more like Tumblr than AO3? In that you can eschew grammar and capitalization for humor or immediacy? So.”

FK: Yeah.

ELM: I think these are some great thoughts, and I had a lot of thoughts as you were reading that one, and as I was reading this one just now, even though I’ve read them both already.

FK: Me too.

ELM: OK.

FK: And I even made a comment on Tumblr already, but I have more thoughts. [laughter] Yet more.

ELM: The one thing I would say quickly, just for earlgreytea’s addendum there, is this is something that I think is a myth, that she says, “I have fandoms that are AO3 and not on Wattpad.” I think that can be true for some. I know that she’s also really active in Inception, and I am not…I have no idea if… 

FK: It’s not on Wattpad. Like that’s actually not.

ELM: It’s so small, though. But—

FK: It’s super small.

ELM: But very visible somehow.

FK: Thank you Aja Romano.

ELM: It’s Aja. But I know that people at Wattpad have talked to me about this, where it’s frustrating, where people will be like, “Oh, you know, my fandom doesn’t like you,” and it’ll be like, Supernatural, or Sherlock or something. It’s like—

FK: Oh my God, and there’s so much Sherlock and so much Supernatural.

ELM: —a billion of those! Right? Again, so like, here’s the thing: I guess, if we start with deboflastyear’s comment first, I agree with this. Because you may remember from the last episode that part where I said that there’s a lot of bad fanfiction out there. And… 

FK: Whoa whoa whoa whoa whoa whoa—

ELM: And by which, but I didn’t mean like bad plots or something, like, whatever. One great thing about fanfiction is you could say literally what sounds like the stupidest summary, you could be like, “Well, John is a blank and Sherlock is a blank”—you know, like, and I start reading it, and I’m like, “Ah!”

FK: I’m thinking about Girl Scout Cookie fic right now. Not pointing fingers at any fandom, but the Girl Scout Cookie fic to me was one where I was like, holy shit. And one of my friends has tattoos fo Girl Scout Cookies as a result of that.

ELM: Wait, what, uh, is it about Girl Scout Cookies?

FK: The characters are Girl Scout Cookies.

ELM: That’s amazing.

FK: No, but OK, hold up. Actually, I have a challenge to this, which is: I agree with you, like, I agree with everybody,  if you don’t have an intention of making your fic better, like, why would you write it? On some level, beyond the immediacy, like, you know, in your own journal. But I feel like a lot of this has to do with having a different understanding of what an editor is for, and who your editor is, right? Because on Wattpad a lot of times people, first of all, people separate critiques and editors, and editors go and do the grammar stuff and critiques are more like general plot improvement.

ELM: Sure.

FK: I feel like people expect that they’re going to put it up and then they’re going to find an editor through Wattpad, like they’re going to find, they’re going to have the fic up there, and then they’re going to post on Wattpad and be like, “Will you give me grammar suggestions? Will you tell me how to fix this?” It’s not about published fic the way that AO3 is.

ELM: Yeah, I don’t know, saying, “I don’t have time to spellcheck?” Spellcheck is like, really? Spellcheck? A computer does it for you. It takes one minute.

FK: But it’s usually not stuff like that, right?

ELM: Yeah.

FK: Like, it’s usually, like—

ELM: I mean… 

FK: That’s not usually the thing on Wattpad, to be honest. It’s more grammar.

ELM: OK, so that’s different. And as we all know, Microsoft Word’s grammar check is complete and utter trash. [Flourish makes a rude noise] Yeah, that’s a thumbs down she just made along with that sound. [laughter] Yeah, you know what, like, that’s fine. I’m not going to read it.

FK: And that’s cool. But I think that actually it was really insightful when earlgreytea was like, “It’s just not my community. It’s not the norms I’m used to.”

ELM: Yeah, but I think that’s really interesting that a lot of the feedback that we got was like this. And I got emails about this, too, and it was like, “People don’t beta…”

FK: I just, but the beta thing I think is such a…I mean, like, the beta thing is so much like…you know who doesn’t beta, also? People who write novels don’t beta. I mean some do… 

ELM: Wait, that’s not true. No, every—I’ve read friends’ novels that are getting published now when they were in Word documents. People get feedback from people. I mean, I don’t know. I’m a journalist. My editor—

FK: But people—

ELM: My editor reads everything I write before it gets published.

FK: Right, but OK, first of all, that’s an editor, that’s not a beta.

ELM: That’s, that’s—OK, so this is a thing, and I think there’s a confusion when it comes to, like, the professional published world in magazines or books. Like, there are copy editors and proofreaders and there are editors, and an editor—

FK: Yeah.

ELM: And a lot of the time, especially on the web with journalism, it gets compressed into one job. Or zero jobs. Which is a problem. Someone kind of just saying, “Fine,” and puts it up and you’re like, “Wait, but there’s a thousand spelling errors…” I think people often get confused when you say editor. That people mean proofreader.

FK: All I mean is that the jobs are split up differently, and there’s different points at which things—I mean I think that if you view Wattpad as like, publishing, then absolutely there’s a problem, but if you view Wattpad more as a social network where you’re sharing something with your friends that they’re then going to edit and, like, respond to you, and that you don’t think of, like, as being published yet, because—

ELM: Yeah.

FK: I mean, that’s different.

ELM: So I think the point, I guess, about it being like Tumblr, that was deboflastyear’s point about it being like Tumblr, is a good one, because if I wrote meta about a television show, I wouldn’t get anyone to edit it in advance.

FK: I think there’s something really analogous to—it’s not a perfect analogy, but it’s interesting, the LiveJournal to Tumblr switch. Fandom moving to Tumblr and I think a lot of people feeling left behind on LiveJournal—it’s not perfectly analogous because fandom hasn’t moved to Wattpad. It’s more that there’s, like, splinter groups in different places.

ELM: Hmm.

FK: Or not even splinter groups, because people are coming on Wattpad for the first time.

ELM: I think that’s true, but I feel like it’s always been that way, and it just happens. I don’t know, I feel like it even happens within, like, within your own fandom. Over the course of a few years, you could find yourself amongst people whose, like, practices and ways of talking about…like, that happened to me with Sherlock, you know? I was having a lovely time, and then all of a sudden the discourse changed.

FK: Nooo. [laughter] The discourse!

ELM: You know? [laughter]

FK: THE DISCOURSE!!!

ELM: Exactly though, and now it’s toxic, and it’s actually ruined, ruined Sherlock fanfiction for me. I can’t read it anymore. Which is actually really sad, just thinking about [it]. EXCEPT earlgreytea, but not even, because now, the way we communicate can really affect…I don’t know. Do you feel like we addressed some of what they said?

FK: I think the thing I thought was really insightful about this discussion was just seeing how much community norms and community expectations have to do with what you’re willing to read or not. Because, you know, I figure if the author didn’t care enough about their story to make it the best it can be, or at least readable, why should I care enough to read it? Like, I think that’s a totally valid feeling, and one that I also have.

ELM: That’s my feeling.

FK: But maybe I’m a relativist, but I actually don’t think that that’s necessarily always the case in every situation. Like—

ELM: Yeah.

FK: That doesn’t have to be the norm of a community.

ELM: Yeah.

FK: It might be the norm that you think is better, and that’s cool, but like, it doesn’t have to be. You know… 

ELM: Well, and I mean, also like, I feel like...I am obviously a defender of all types of written words or whatever, and I don’t think that, like, literary fiction is the only genre or whatever. But…in a lot of… 

FK: But… 

ELM: But…in a lot of genre fiction, in the genres like thrillers and mysteries and romance…are you ready for this?

FK: Sock your snobbiness to me, baby.

ELM: Sometimes… 

FK: Sock it to me!

ELM: Sometimes…no, a lot of time times, they’re very formulaic, and—

FK: That’s part of the pleasure!

ELM: Right! Right. But for me it’s not. And so, like, I tried to read, like, I don’t know, I tried to read The Da Vinci Code and I couldn’t read like more than one page.

FK: Oh, well, The Da Vinci Code is shit, because like actually that is a case where, like, I was like, this was fucking published, like. Even the plot’s bad… 

ELM: He went to my college, too!

FK: Oh! I’m so sorry! I’m so, so sorry.

ELM: Yeah, OK, I think he was the same year or one year apart with David Foster Wallace, so those are what we produce. Those are our extremes. Dan Brown or David Foster Wallace, those are the two.

FK: OK, I just have to say that that was a case—I’m fine with bad grammar in something that’s posted on the internet, but the instant that something is published, I’m like—

ELM: Oh, The Da Vinci Code? I thought you were, like, insulting David Foster Wallace.

FK: No no no no, The Da Vinci Code! I didn’t even read that! I couldn’t read the sentences! I was like—

ELM: OK—

FK: —if this were on fanfiction.net I could read this, but I’m not reading this.

ELM: Naw, I couldn’t. I guess one thing that also I feel like these comments made me think about was, I did feel like when I became aware of AO3 and when I started reading there, I felt like all the things that I had been wanting from my fanfiction, like, searching experience—particularly because when I came on to AO3 it was when I was starting in a new fandom, because it was Sherlock, and people weren’t really making rec lists anymore. I didn’t know how to find stuff.

FK: Right, so AO3 really felt built for you.

ELM: And it did, and especially as someone who’s really into, like, information architecture, and...

FK: That’s interesting, because EarlGreyTea felt like they needed to learn Archive of Our Own.

ELM: Wait, I’m looking at—

FK: It wasn’t just like—

ELM: —the comment right now, I’m not sure that’s true. Did she say that?

FK: Yeah, she says, um, she says, “I—”

ELM: Oh, yeah.

FK: “I know feel like it’s superior to any fanfic archive I used before, but I remember being like, ‘What is this?” and having to learn it.

ELM: Oh well I remember that, too, but I also remember being, like, “What is this?” and being like, “Oh GREAT, thank God, I can sort by this and this and this.” And there are still a few features that I think would be relatively easy for them to implement that…maybe I’m overestimating…that would just make it an ideal experience. But I just felt like, “Oh, these are people creating this archive who are like me, who read like me,” and knew what they wanted.

FK: Right. As opposed to, like, Wattpad, or almost any other tool where fandom comes and is like, “Oh, we can work with this.”

ELM: Right. Yeah! Which I think is really interesting. And if you’re going to be talking about the way platforms shape our conversations or vice versa, I think that’s kind of at the heart of it. Which is—

FK: Yeah, I do think that we have to give credit to Wattpad for obviously listening, you know—

ELM: Right.

FK: However incrementally and slowly, but of course, then it’s still not—it wasn’t built for it, so there is—

ELM: Yeah, and the same thing, we’re going to have Amanda on, and the same thing with Tumblr. I mean, none of this is to take anything away from Wattpad. Yeah, like, kudos to them for embracing fandom and learning from fandom. I mean, Aron even talked about it, the way they changed tagging because of fanfiction. I think that’s awesome. You know? And it’s heartening, too, because I feel like one thing that Wattpad has that AO3 never will, really, I mean, maybe not, never say never, is there are original—it’s original and fanfiction in the same place.

FK: Yeah.

ELM: And the fact that they can influence each other, and that’s something that, you know, a strictly fanfiction place is never going to do.

FK: There hasn’t been another place like that. I mean obviously there was FictionPress and fanfiction.net, but those things didn’t really cross over well. Fanfiction.net, right, had an original fiction section and spun it off to be FictionPress. It wasn’t really very effective.

ELM: Yeah, I mean… 

FK: So. This is sort of a new thing.

ELM: The, like, original fiction space on the web is not—

FK: Good.

ELM: [laughs] It’s not had a lot of success over the years.

FK: No.

ELM: So anyway. Thank you so much to everyone who commented. Thank you to earlgreytea and to deboflastyear for letting us read your words on the air.

FK: THANK YOU.

ELM: And of course, for next time, after you hear what our lawyers have to say, if any of you have feelings again, let us know!

FK: Give us your feels!

ELM: Yeah, we want them all.

FK: Bring us your poor, your tired, your hungry....

ELM: Feels.

FK: Feels? [laughter] No. That doesn’t work at all.

ELM: All right. Should we go to Lawyer Number One?

FK: Lawyer Number One! [laughter]

[Interstitial music]

ELM: Hi, Betsy!

Betsy Rosenblatt: Hello, hello!

FK: Glad to have you on!

BR: I am very glad to be here!

ELM: So, Betsy, why don’t you tell us a little about your role and your professional background and fandom? I know you were on our panel as a lawyer, and you have an affiliation with the Organization for Transformative Works, but I’m not exactly sure what your job or your extracurricular activities entail.

BR: Well, I am a lawyer, and more to the point I’m a law professor, and I also do have a small consulting law practice—although my focus is being a professor. And my main extracurricular activity aside from fiber arts and fandom [general laughter] is that I am the chair of the Legal Committee of the Organization for Transformative Works.

ELM: So that, I mean, it sounds like you’re—your professional work, what you teach, goes hand-in-hand with the kind of work you’re doing for the OTW, is that a bad assumption, or…?

BR: No, that’s very, very true. Actually, I teach a variety of intellectual property subjects at the law school. I also teach civil procedure, which has nothing to do with fandom at all, but is fascinating! My scholarship is, you know, when I write law review articles and stuff like that, is often about areas that are close to my fandom heart, like areas where copyright law is complicated by the fact that people are doing things because they love them, not necessarily because they want to make money from them.

FK: So what is your fandom heart? Tell us about your, your fannishness.

BR: I am an old school Sherlockian! I’m a Sherlockian from back back in the day, I was born into Sherlockiana, and I’m a member of the Baker Street Irregulars and the Adventuresses of Sherlock Holmes.

ELM: That’s so fancy!

BR: Perhaps too fancy for some. But it’s a lot of fun.

FK: We’ve been joking about how old fans, like, come and have to school new fans, and you’re like, the prime old fan! Like… 

ELM: The oldest fan!

BR: So, I actually think in a lot of ways that new fans should be schooling old-school fans. Old-school Sherlockiana was dominated by men who were mostly writing fantastic meta, and then this sort of separate group of people who were also writing pastiche, a lot of which was commercial pastiche, and the sort of fandom-for-the-joy-of-fandom, and fandom on the internet, and a lot of the sort of speculative fandom that dominates media fandom now is really symbiotic with old-school Sherlockiana—but they haven’t communicated a lot until the last maybe five years.

ELM: Because, do you think of, I mean it’s interesting cause I’m in the BBC Sherlock fandom, and so I’ve explored a little bit of this, cause I’ve written a few articles. It sorta seems like there’s such a resistance to—I was reading that it was the same when the Grenada Holmes came out, that there’s a kind of, there’s some sexist overtones, there’s some anti-pop-culture overtones, y’know, with saying “Oh this is just a flash in the pan, it’s just another interpretation”?

BR: I think there are overtones of both of those. I would add to that classist overtones, and I think the anti-pop-culture and the classism go hand in hand. I’m sort of getting into this right now because I’m co-editing an upcoming issue of Transformative Works and Cultures that’s going to explore sort of relationships between old-school Sherlockiana and new school fandom.

ELM: All right, so let’s talk works. I am really curious about the Organization for Transformative Works, and we should tell our listeners—we talked about this beforehand, but—while you work for the OTW, you are not speaking on behalf of them, but you can speak about them.

BR: Yes. The OTW is a multi-faceted organization, and it has a lot of different aspects. It’s entirely volunteer-run, and it does various things that advocate for fans and fan works and fandom more generally, to help promote acceptance and love of fandom and fan works. So it has a bunch of projects, including the one that I am most involved with, which is legal advocacy. We work on lawsuits and we help educate people and testify before Congress and things like that, um, to protect and defend fanworks and fair use law—not just in the U.S. but outside the U.S. as well. Our sort of motto there is “We’re committed to protecting and defending fanworks from commercial exploitation and legal challenge.” 

But there’s lots of other things that we do too, there’s an Archive Of Our Own, which many of your listeners probably are very familiar with; Fanhackers, a blog which is a discussion of fannish meta area; Fanlore, which is a fandom wiki; the Open Doors Project, which archives and saves archives that are sort of going to die by importing them so they run the Fan Culture Preservation Project; and they also operate Transformative Works and Cultures, which is an academic journal about fan culture and fandom and fanworks. So, ah, lots of stuff that the OTW does, it’s all nonprofit, we’re going to have probably a donation drive in a couple of months or, no, I guess a little over a month, so people who like what they hear can go and donate.

FK: So something I’d never heard before about the OTW, actually—and this is funny, because I’ve been around since like before there was an OTW and I remember its founding very well—but I never heard the “protecting fanworks from commercial exploitation” bit. That’s really interesting! I know you can’t speak for the OTW, but what is it often interpreted to mean?

BR: What it mostly means to us is that we are all about the non-commercial fan. We’re about creating a world where people who want to do fan things, because they love fandom, aren’t denigrated for it and are treated with respect and appreciation. It also means that when people come to us with questions about, like, “I want to make money from my fanwork, how do I do that?” our answer is “That’s not quite what we do.” We do other things, ah, there are other people you can talk to about that. 

One of the areas where we do work to protect fanworks from commercial exploitation is, there’s lots of circumstances when someone has made a fanwork of—there are lots of different circumstances where this happens, one is for example like a fanvid, or a story that then someone else publishes or someone else wants to use for advertising or advertise over, and if the fan is unhappy about that because they feel it’s plagiaristic or because it’s commercially exploiting their labor for someone else’s commercial benefit, we can help them explore ways to keep their work out of the commercial zone. It happens a lot, actually. It happens where people put their works up on the internet and then someone decides they want to sell them on Amazon as eBooks. There was a, an outfit relatively recently within the last few months called eBooks Tree—

ELM: I saw that one!

FK: I remember that now!

BR: —which was scraping the Archive of Our Own and selling things that were on it, you know, for the world. This happens on YouTube and some other video platforms where someone will put up a fanvid and the movie studio will put ads against it. That’s probably fine for most fans, most fans want to sort of promote the projects that they love anyway, but others I think take the approach that “I really want this to be not about making money and I don’t want the studio to advertise based on my fanvid.”

ELM: Sure.

FK: Wow, so you, you fight that? I didn’t realize that that was—I mean, now that I think about it I’d heard about eBooks Tree, but I didn’t realize that you actually fought YouTube content ads.

BR: “Fight” is a bit strong. But we’ve helped fans with their questions about “what do I do when this is happening and I don’t want it to happen.” One person who we didn’t help directly, but it came up and we sort of were part of the larger conversation about it, was a guy named Jonathan McIntosh, who made “Buffy Vs. Edward,” who actually did fight very hard to get the ads taken down from his work. So he’s the sort of most visible example of that, and that’s not something that we worked on. There are people who don’t want to be faced with the choice between “Hey, someone makes money from my work, or I have to take it down.” What they want is to have it up for free.

ELM: I have a question about the OTW. So it’s multi-faceted—was one of these facets the, like, impetus for its founding? Or, I mean, I’m just curious about how these things link together, and like, we just had Wattpad on last week—it’s funny because there’s kind of a component for a lot of the different things that the OTW and AO3 do that happens within Wattpad, but they obviously have a completely different ethos and mission and set of goals and just are coming from a different place. And I’m just curious about how this stuff sits together in an noncommercial organization, like the OTW—does that make sense?

BR: Yeah, so I am actually not one of the founders, I work very closely with Rebecca Tushnet who is one of the founders, so I wasn’t there at the inception, I don’t know exactly what was in their heads. I know one of the things that comes up as part of the history is they really wanted an environment where fans own the servers.

ELM: Mm-hmm.

FK: Yeah, because that was around Strikethrough, right? Or maybe it was a little bit before that, but there had already been several issues where fanworks had been taken down for not very good reasons, in the opinion of many fans.

BR: Yeah, I think there was, well, I think there was a generalized fear that if you’re relying on other people’s platforms, and this is an actually a much larger issue that doesn’t just have to do with the founding of the OTW, but has to do with something that I know you and I have talked about in other contexts—you collectively and I have talked about in other contexts, which is that when someone is making money from fan labor, there is always an opportunity for censorship.

FK & ELM: [unison] Mm-hmm.

BR: When fans have to depend on someone else, that someone else might take something down that they don’t like, and we don’t really have to think too hard about why they might not like it! Maybe they won’t like it for copyright reasons, maybe they won’t like it for trademark reasons, maybe they won’t like it for content reasons, maybe they won’t like it for personality reasons, but there’s a sort of personal autonomy element to fandom that I think a really important thing to preserve. Maybe not the only important thing to preserve, but a thing that matters, and I think that’s part of what mattered to the work. 

I think a lot of the impetus behind the OTW as I understand it is this sense of personal autonomy. You want to be able to do what you love because you love it and not worry about somebody else making rules that make it harder or more expensive for you to say what you want to say. Having the Archive Of Our Own, which is on our own servers and so not subject to that particular kind of possibly capricious censorship, having the Open Doors opportunity to save things that might be getting taken down for financial or other reasons, having the legal advocacy project which of course is close to my heart to help make sure the law doesn’t take these things away from us, these all go to that sort of personal autonomy you want to be who you want to be attitude. Now, whether that was in the founders’ heads, I don’t know. But that’s definitely in my head as I’m doing it.

ELM: Flourish comes from a very specific perspective with fanworks that I think a lot of regular, you know, like, I spent like 15 years just reading a ton of fanfiction, not really putting anything back in, and I never ever thought about the legality. And I didn’t know that any of my, like, YahooGroups that I subscribed to in the 2000s were being threatened with lawsuits. Even, I don’t know if they were or not.

FK: Did you have ideas about plagiarism, though? Like, so there’s, I mean I think this is interesting, cause there’s like the legal and the moral… 

BR: Copyright infringement and plagiarism are really different things. And plagiarism isn’t illegal. It’s immoral, but it isn’t illegal. Copyright infringement is taking someone’s expression without their permission. Doesn’t matter whether you attribute it to them, all that matters is whether you got their permission. And the remedy for infringing someone’s copyright is paying them. Plagiarism is taking someone’s ideas without attributing them. Doesn’t matter whether you got permission, although it’s unlikely that someone would give permission for you to use their ideas without attribution, some people certainly would. So plagiarism is using someone’s ideas without their attribution, and the remedy for plagiarism is attribution. 

So there are certainly times when I think people think “Oh, copyright infringement is wrong,” like, imagine someone made a tentpole movie out of my fanfiction and didn’t pay me, right, and they think, like, “Well, I don’t care if you credit me, you’re making two billion dollars off my fanfiction, you should pay me!” But other times I think copyright infringement is something that people end up doing in their day-to-day lives, whereas plagiarism is something they wouldn’t dream of doing, because they understand that it’s wrong. It just isn’t illegal.

ELM: Yeah, this is a really interesting distinction, I’m trying to think, I’m imagining my, like, 15-year-old self, and like, I’d never think of fanfiction as plagiarism, everyone always put those disclaimers on, this is just for fun—

BR: Well, it isn’t plagiarism!

ELM: Right, but-

BR: Fanfiction isn’t plagiarism, because it’s credited! We say, you say where it’s coming from, it’s not plagiarism! For sure, 100%.

ELM: Right.

BR: There are occasional, you get plagiarism issues uploading someone’s fanwork against their will without crediting them, is both copyright infringement and plagiarism.

FK: Right.

BR: It’s copyright infringement because you are copying and distributing their expression; it’s plagiarism because you’re not crediting them.

FK: Right.

ELM: What is expression?

BR: Before we get to what expression means, which is a great question, is, I think there are a lot of people who believe that because fanworks are derivative in the sense that they’re derived from something else, that fan creators don’t own copyright in their fanworks, and that’s false. Fan creators do own copyright in their fanworks—they don’t own copyright in any of the underlying work that they derived their work from of course, you’re an X-Files fan, you don’t get any rights over The X-Files. But you do get rights over your story or your fanart or your fanvid. 

That ties in with your question of what is expression. Expression is the way you convey your idea. So, your actual sort of arrangement of words in a story. That’s a very specific kind of expression. Or the way you’ve organized your ideas. The reason we say “expression” is to distinguish it from an idea. An idea isn’t copyrightable because it’s just an idea. It’s out there floating in the world, that anyone can use. But when you get down to a certain level of specificity, you start to think, “This isn’t free-floating out there for anyone to use. This is a particular way that someone did something,” and that’s an expression that is at least potentially protectable by copyright.

ELM: That’s so complicated, though! I mean it’s just, well, obviously it is tons of lawyers thinking about this… 

BR: It’s complicated, but it’s also sort of instinctive.

FK: Yeah.

ELM: Can I steer us back to talking about the OTW and talking about fanworks?

FK: Yes!

BR: Yeah!

ELM: It sounds like for you guys, your sort of ethos is that you’re helping fans who don’t want any commercial involvement. Just stay away from that, right?

BR: I think that’s right. And I’m sure there are people who are involved with the OTW or who post on the AO3 who also want to make commercial benefit from their works, but that’s not what we’re about. We’re really about non-commercial fan culture.

ELM: That’s really interesting, especially having just talked to Wattpad and before that having talked to Meredith, who was so far on the end of the spectrum of—to the point where I didn’t realize it while we were talking to her but afterwards I listened to it and I was like “Whoa, I don’t agree with half of this!” [general laughter] 

She was talking about YouTube creators taking sponsorship and this kind of, what did we say, this “enclosing of fandom” was I believe Flourish’s term, the kind of shift that’s really happened only in the last few years. Where this, it’s kind of just a commercial sanctioning, not necessarily, you don’t need to be protected from the commercial entities now if you want to be involved in that kind of fanwork.

BR: That’s definitely something that’s happening now, and I think it’s accepted by a lot of fans, but I think there are also a lot of fans who actually, it’s not just that they don’t care one way or the other, it’s that they really want their work to be something separate from the commercial sphere.

FK: Yeah.

BR: They don’t want The Powers That Be to be involved in what they are doing partly because they want to say something that may be something The Powers That Be don’t approve of.

FK & ELM: Right.

FK: So I’ve actually been, so it’s been interesting because I’ve been sort of struggling with this, since obviously my job and my life involves a lot of negotiation between this. And the way that I’ve, come to terms with it isn’t the right term, but the way that I think about it is about—it’s that somehow the commercial presence buys that freedom, you know, maybe, to some degree, or in my fantasy world it does, anyway…right? 

The idea that The Powers That Be know that fanfiction exists, understand that not all of it is for them, and, you know, essentially instead of trying to go after it wholesale, you know, go to Wattpad and make a deal with Wattpad and then leave everybody else alone. But I pretty quickly realized that not everybody else sees it this way, as I’ve been talking with people.

ELM: NOPE! Nope.

FK: Not at all!

BR: I don’t think that the commercial side of things, for example what you’re doing, is inconsistent with the existence of this noncommercial gift-based sharing-based fan ethos. I think it becomes inconsistent with that when there’s an assumption that everybody should want to or does want to commercialize what they’re doing. Or everybody should want to or does want to have The Powers That Be involved. That’s a really dangerous set of assumptions because it breeds censorship. And it breeds, it silences certain kinds of speakers. As long as it doesn’t become normative, to use too fancy a word, there’s no inconsistency there. The inconsistency comes it becomes a “should” rather than an “is.”

ELM: Wattpad went out of their way, which I thought was interesting, to say it’s “available.” You know, it’s not like someone is banging on Flourish’s door as we speak [Flourish laughs] trying to pay her for her One Direction fic. You know, they’re just saying that that exists. but I just feel like it changes the climate.

BR: Yeah, and I think it breeds—it certainly breeds the possibility of a “should.” Because then there’s that question of, like: “you want to give away your fanwork, what’s wrong with you? Do you think you’re a not good enough writer?” Or “do you think you’re not a good enough artist?” Or, this is something I think I’ve said to you guys before, which is I think the mainstream media gets really confused by the idea that someone might not want to make money from something.

FK: Yeah.

ELM: As a representative of the mainstream media, I can say that is correct.

FK: [laughs] As a representative, by the way, what’s funny is that as a representative of the entertainment industry—

ELM: These are our camps!

FK: Ah—

ELM: Where we’re coming from.

FK: I think that people perfectly well understand it, because people understand that certain things aren’t salable, you know? I think that like, you know, for instance my One Direction fanfic is ultimately about a, like, happy threesome, and that is never going to happen—

ELM: Wait, spoiler! There’s going to be a threesome?! [Betsy just laughs]

FK: It’s literally, it’s in the intro! It’s in the fucking—

ELM: I haven’t read it yet, Flourish!

FK: It’s in the summary of the fic!

ELM: You only started writing it like four days ago!

FK: IT HAS TEN CHAPTERS ALREADY!

ELM: Oh my—

BR: Oh my goodness, what are you doing with your time?! [Flourish laughs hysterically]

ELM: Yeah, you know what, so I was like “Flourish, where are the show notes?” And she was like, “UM…”

FK: [wailing] I fell into a Harry Styles pit!

ELM: She’s like, “I wrote a new chapter!” I was like “That is not correct!”

FK: [through hysterical laughter] I fell into a pit of Harry Styles’ hair! Nothing but his hair! Just his hair!

BR: It keeps getting longer!

FK: I know!

ELM: That’s what I’m concerned about!

FK: It’s like its own little animal!

ELM: It’s too long.

FK: No, the man bun! You have to love the man bun! Anyway. [just can’t stop laughing]

ELM: WELL.

FK: It’s been so good to have you on the show, Betsy!

BR: It’s been so good to be here, Flourish!

ELM: Thank you so much for coming on, and we hope to have you on again.

BR: You’re very welcome, and I hope so too!

[Interstitial music]

ELM: All right! We are very excited to welcome a second lawyer to the podcast, Heidi Tandy!

FK: Yay, Heidi!

ELM: Heidi, thank you so much for joining us!

Heidi Tandy: Thank you so much for having me here! I’m just back from DragonCon where I spent a couple days talking about fan law and IP, copyright, fair use, contracts, why you shouldn’t ask people who are reviewing your books to say, to lie about whether they got them for free, [general laughter] all sorts of other things that are now totally falling under this legal area called “fan law” where there’s just an intersection of so many different issues—that are not new, but that definitely are being understood in different ways by the mainstream media, by people who are creating fanworks, and by The Powers That Be, who are finally realizing that, no, they really can’t overreach when it comes to claiming copyright rights that they don’t have and trademark rights that they’re not allowed to establish.

ELM: So, let’s take a step back. I think it’d be helpful for our listeners to know just briefly who you are. I know you’re a lawyer, but you’re a fan lawyer too, or just a fan…all three, all three!

HT: Well, I was a fangirl before I was a lawyer, but I was a lawyer before I was a fandom lawyer.

ELM: OK.

FK: Fair enough.

HT: Going back a really long time, I was involved sort of peripherally on Usenet and America Online in fandoms for the band Crowded House, for the TV show Melrose Place, but by the late ’90s I was very active in a mailing list for the TV show Friends and I then sort of via that list and friends over there I discovered the Harry Potter books and came into the fandom literally the day that Goblet of Fire came—well, I guess technically the day before Goblet of Fire came out. That was basically the same time that I met Flourish over the couple of months following that because she was an “oldbie” in the Harry Potter fandom!

There were legal issues going on. So there were a number of mostly teenagers, some twenty-somethings, who’d registered domain names that included words from the Harry Potter series. Warner Brothers was very early on very irked about that, because they felt that to preserve and protect their trademark rights they also had to block non-commercial, non-trademark nominative and descriptive uses of their trademarks. “Nominative and descriptive” means that you’re not using something as a trademark, you’re not using something as a brand, you’re using it to describe what you’re talking about. You’re using it to let people know that they can talk about Harry Potter or Hufflepuff or Slytherin or crumple-horned snorkacks… 

FK: [giggles] Those didn’t even exist yet in canon at that point, Heidi!

HT: Oh, OK—

FK: Let’s keep it, let’s keep it real here.

HT: No, but they did in 2001 because they were mentioned in Fantastic Beasts and Where To Find Them!

FK: But Goblet of Fire came out before Fantastic Beasts.

HT: It did, but there was only about nine months.

FK: Anyway.

ELM: Harry Potter fight, Harry Potter fight!

FK: Harry Potter fight!

HT: CANON! [general laughter] So because of all that, over the past couple years, I’ve done things like founded FictionAlley; been part of the original legal committee for the Organization for Transformative Works, which I still serve on; spoken at South by Southwest and DragonCon and Comic-Con and law schools like the University of Pennsylvania; and currently in addition to all those other fan things I’m doing, I also run/manage fyeahcopyright.tumblr.com, where we talk about legal issues as they intersect with fandom, fanworks, and pretty much anything that people want to post on Tumblr.

ELM: And another thing that I know you’re doing right now, and that I saw you talking about at both Comic-Con and GeekyCon, was a campaign called Fanworks Are Fair Use, right?

HT: Yes.

ELM: OK, so I think that’s a great place to start. Could you just, like, explain fair use for someone like me, who doesn’t know much about the legal side of fandom? What is fair use, like, what can fair use let you do?

HT: It lets you talk about the films and the TV shows and the musicals and the music and everything that you absolutely adore. It lets you create transformative works, it lets you use it as inspiration, it lets you do so many things. Sometimes it lets you sell it, but usually you’re much safer not doing so.

ELM: Define “transformative work.”

HT: Transformative work is something that takes an original work or a source work—I prefer the term “source work” because nothing is truly original, let’s look at Shakespeare for awhile. So it takes—

ELM: Betsy looked at Shakespeare, too!

HT: [laughs] Oh, OK! Yes!

ELM: Popular example.

HT: We like Shakespeare! A transformative work is something that takes a source work and creates a “follow-on work.” You’re taking a source work and you’re doing something different to it. You’re looking at it from a different perspective, you’re saying “Well, what if this different thing happened in the story, what if this different thing happened in the past,” all sorts of things.

ELM: Well, so what if I see a still image from a movie and I draw an exact version of that? Is that transformative?

HT: It might be transformative, because… 

ELM: And then I sell it on t-shirts. Shower curtains!

HT: The work might be transformative because you cannot draw an exact, exact copy. There’s going to be some variation in it, even if it’s only something you can see on a very, very close viewing level. 

Now, one of the things is, when determining whether something’s a fair use, courts generally look at whether it’s impacting the commercial marketplace for the source work. So if you’re not selling it, and they’re not selling that poster either, then it’s not making any sort of an impact on the source material—it’s not making an impact on its commerciality. However, if you decide to sell it and it’s something that they are also selling, you know, either identically or extremely similarly, and the amount of transformative content that you have put into it is “de minimis” or very small, then it’s possible that a court won’t say that it’s transformative.

FK: So, OK, so could you talk a little bit—I’m just thinking about case law, and I think that I’m, actually, so Elizabeth and I were talking about this and she was like “Flourish, I think that you’re a lot more familiar, because of the way you got into Harry Potter fandom and fandom in general,” you’re probably a lot more familiar with… [Heidi laughs]

ELM: Well… 

FK: With case law, with intellectual property rules, and you think they’re a lot more interesting than most people…

ELM: Well, but then also like, do you remember, I don’t know if it ever made it into the recording but you were talking about Hannibal and how there were legal reasons why Clarice couldn’t be there…

FK: Yeah!

ELM: And, like, I understand why you find that an appealing way to analyze a text, is to think about the actual working parts of the legal stuff, but I am less interested in that, and I wonder if those go hand in hand, right?

FK: I mean, I think probably so, what I was going to say though was…

ELM: Plus you love money, so.

FK: [laughs] How does my love of money have anything to do with this?!

ELM: It underpins everything! Go ahead.

FK: It underpins everything in my life. All I was going to say was, so, I mean, Heidi, maybe you could talk a little bit about one of the major pieces of case law in this, the case that’s about The Wind Done Gone…

HT: Yes.

FK: Which I think is a really interesting one, and I don’t think as many people in fandom know about it as they ought to, because.

ELM: I’ve never heard about this! What is this?

FK: What!

HT: Oh my gosh!

ELM: Tell me all about it!

FK: Yeah, we have to tell you all about it!

ELM: Tell me!

HT: It’s published fanfic of Gone With The Wind from the mid-1990s that tells the story of Gone With The Wind from the perspective of one of the slaves. It’s really, really fascinating.

FK: It’s a huge critique!

HT: It’s a huge critique, it’s commentary and criticism, the original author, her estate went ballistic. Because they were already in the process of creating their own, you know, authorized fanfiction.

FK: Not to mention that they really don’t want anybody to think too hard about Gone With The Wind and how incredibly racist that thing is.

ELM: How batshit racist.

FK: It’s so racist!!

HT: Yes. Which I acknowledged when I read the whole thing when I was like 11 years old.

FK: Because how could you not?! But anyway.

HT: But, so there was this novel, and it was published by a major publisher, and they sued, and the end result of it was basically that the court had to find that it was a parody of Gone With The Wind, because of the way the case law was written back then, because this was not so long after the Supreme Court ruling in the 2 Live Crew “Pretty Woman” case, which had held that the 2 Live Crew “Pretty Woman” song was a parody of the Roy Orbison song. And that’s the awesome one where Justice Scalia’s talking about bass riffs because—or not Scalia, sorry, Souter was talking about bass riffs, which was very very cool. It’s an awesome, awesome ruling.

FK: [laughs] Can we just say that somebody just said on our podcast, “it’s an awesome, awesome ruling”?

HT: It is, and I hope that it inspires some BPAL fragrances, because I’ve got my Jiggery-Pokery and my Applesauce right in front of me! Which are actually Scalia-inspired!

ELM: He’s been on a roll this year, let me just say. What a wordsmith.

HT: The thing about the Wind Done Gone case is that in a lot of ways that, and a case involving a Seinfeld quiz book, were the two most prominent elements of case law that impacted fandom right about the time I started getting involved with it.

ELM: Can we go back to the Fanworks Are Fair Use campaign? I want to know more about this.

HT: So, one of the things that I’ve been working on for the last couple months or so has been with the Harry Potter Alliance and a number of other fanfic writers, authors, people like Orlando Jones have been involved in this, the OTW is involved, SuperWiki, the “Three Patch Podcast,” we’ve all come together to work on this campaign called Fanworks Are Fair Use. 

It does what it says on the tin: it lets people know that fanworks are fair use, that being creative is fantastic, and one of the underlying instigators of this has been discussions that I was having with the HPA back in the spring—actually, probably going back three or four years—that fanworks have given people so much. It’s awesome and it’s enjoyable to get to read the stories you like and to get to see a fantastic piece of art and someone really talented make a great fan film or an amazing song. 

And all of us know some really fantastic people who’ve come out of fandom to do just phenomenal stuff in the publishing industry, entertainment industry, you know, off-Broadway this fall, et cetera et cetera. And it’s fantastic that people manage to grow and develop their skills within fandom, and within—not just by writing fanfiction in a vacuum or creating fanart in a vacuum, but because of the community around them and the people who are there to give you commentary and feedback and talk something over with you and share your headcanons and share your squee. And that makes a really serious, significant impact on people’s creative output, creative impulses and creative inspiration. So we’ve created this #FanworksTaughtMe hashtag, it’s on Twitter, it’s on Tumblr. By doing this, we’re getting people to share different stories about what fanworks have taught them.

ELM: The Fanworks Are Fair Use element of it—is the intended audience fans, who are unaware of this, or is it kind of a general advocacy…?

FK: Cause you’ve mentioned to me before, outside of this podcast you’ve mentioned that you’re sometimes surprised by the questions you get running F Yeah Copyright, that people still have big misconceptions about legalities…

ELM: We haven’t said what F Yeah Copyright is!

HT: So about two and a half years ago, Universal Studios decided to sue a porn company that was doing a “parody” of Fifty Shades of Grey. It was well before Universal was going to be able to roll that movie out the door. And they sued, and their pleading papers were absolutely fantastic because it said things like “Oh, just because a story has been posted as fanfiction on the internet doesn’t mean it’s not protected by copyright,” and the porn company was walking around saying “Oh, it was posted on the internet, therefore it is public domain,” which is not true! 

So I thought that it was just lovely sentences, and I wanted to preserve them in a way that people would be able to access forever, so I started a Tumblr to preserve this stuff, and we started getting questions from people who were like, “But I thought that everything I posted online was public domain!” 

And then we started dealing with people who misguidedly believed that it was important for them to write a disclaimer on their fanfic that said “I don’t own anything, you can use it for anything.” And the problem with that is, yeah, possibly then you are coming very close to releasing it into the public domain, but at the very least you’re giving nefarious and evil people the right—you are licensing them the right!—to take your fanfiction and upload it onto Amazon and sell it. And I don’t think that that’s what people really have in mind when they say “I don’t own anything.” But, unfortunately, that’s how courts would interpret it, that’s how evil nefarious people would interpret it, and while they’d be unfair, they’d have unfortunately almost an entire leg to stand on. 

So we started doing this Tumblr, and we were getting questions, and we were trying to explain things to people, and then rumors started flying about Terms of Use agreements, and these people did some kind of insane psychological experiment on Tumblr where they lied about Tumblr’s Terms of Use, and all of a sudden we had 5,000 people following us. And it’s nice to have a way to talk about the legal issues in connection with fandom, not just how to be creative but how to protect other people’s creativity.

ELM: I feel like, Heidi, you more than anyone I know in fandom has a very firm sense of the scope of history when it comes to fannish things. Maybe not than anyone, but you are up there in the top five. And I’m wondering what this landscape looks like to you now. You know, we had Wattpad on last week, they come at things from a completely different angle and it’s the angle of what’s happening in 2015. And I’m wondering if for someone like you, who’s been fighting these battles for a decade, a decade and a half, and to see the entertainment industry shift so much, and fans shift in kind, I wonder what that looks like to you?

HT: It looks interesting to me. Because I think we’re at the point right now where—well, there’s one more legal issue that I haven’t talked about and you can tell me if Betsy talked about it. Did she talk about laches at all?

ELM: No, what’s laches?

HT: OK, laches is a doctrine in, basically copyright law but also trademark law.

ELM: Multiple latches! Is it some dude’s name, Latches, Mr. Latches?

HT: No!

ELM: Aww.

HT: Actually, I don’t even remember the etymology of it anymore. Basically it means that the longer the owner of the work ignores something, the less right they have to stop it. 

So we’re at a point right now where the powers that be have not taken action against fannish creativity in general for a very, very, very, very long time. So for me, even while things like Wattpad and YouTube and Vimeo and even what Facebook is doing with hosting videos in their own really pathetic content-matched version [general laughter] and fan films like the one Tom Felton did last year and the one that some of the people involved with Supernatural are doing now, and even what Universal does by allowing people to come in in costumes and stuff like that, the longer the powers that be allow that sort of thing to happen, and because they’ve allowed it for so long right now, under the laches doctrine, they can’t come up right now and say “By the way, this must all absolutely stop.”

ELM: Hm!

HT: Like when Kindle Worlds started about two years ago, there was some concern that that was going to be used as sort of a backdoor way to limit what people were going to be allowed to do with fair use with regard to only the properties that were showing up in Kindle Worlds.

FK: Which by the way, I mean, MEH.

ELM: [speaking over each other] You don’t care for The Vampire Diaries?

HT: [speaking over each other] Kindle Worlds has been such a flop!

FK: But it wasn’t the actual Vampire Diaries! I mean it was, but it was the book Vampire Diaries, not the movie Vampire Diaries…

ELM: It’s a show, right? It’s a show!

FK: They’re different. It was books first. And they’re very different.

ELM: No, but—and Kurt Vonnegut, wasn’t Kurt Vonnegut the one?

HT: I think so… 

ELM: There was some, like, fancy author who was like, well, OK, I guess it’s his world too… [Flourish laughs]

HT: And The Powers That Be have always allowed, you know, fan creativity with regard to this contest or that contest. So for me, as long as The Powers That Be are not trying to shut down organically grown grassroots fandom, I think organically grown grassroots fandom is going to survive and thrive. Right now, because of the laches doctrine and because of the way that fair use is getting expanded, fandom is not getting shut down.

ELM: On that note, I think that we have to wrap up. But we want to thank Heidi Tandy so much for being on the podcast!

FK: Yeah!

HT: Thanks, guys, and I hope people go over to the website and look at the links that I am about to just flurry down on you!

ELM: Hopefully they will!

FK: We’ll make sure that they’re in the show notes. Thank you so much for coming, Heidi.

ELM: Thanks, Heidi.

HT: Thanks guys, this was awesome.

ELM: All right, so, that’s it for this episode!

FK: So it is.

ELM: Do you feel like you learned a lot? I feel like I maybe learned too much about the law.

FK: I feel like there’s a lot more about the law that we could all learn, um… [Elizabeth sings the Law and Order theme song] ...and if you want to do that, if you want to learn more about it…

ELM: [sings more Law and Order theme song] Oh, are you trying to be serious?

FK: I am! [Elizabeth keeps singing, Flourish laughs] ANYWAY, we’ve got show notes, so you should look at the show notes if you actually want to learn more about these things.

ELM: Lawyers love it when you reference Law and Order.

FK: [laughs] They love it.

ELM: No, they don’t love it. My dad’s a lawyer. He doesn’t love it.

FK: Anyway, we probably have some thank-yous! Obviously thank you to Heidi and Betsy.

ELM: Yeah, thank you to Heidi and Betsy, especially for kind of pinch hitting for us…

FK: …when Amanda couldn’t make it.

ELM: And hopefully as we said, we’ll have Amanda either next time or the time after, um, if we don’t hear from Amanda we will be talking to Jules, from SuperWiki.

FK: SUPERWIKI! [makes fanfare noise] Jules, by the way, of the tentacle porn, so we’re really looking forward to what she’ll bring on the show.

ELM: Maybe you’re looking forward to what she’ll bring on the show.

FK: Everybody loves a tentacle!

ELM: [laughs] It’s true! All right, so, I think that’s it! So thanks so much for listening, and oh, as always, you can follow us if you’re not already—fansplaining.tumblr.com, or fansplaining at Twitter or Facebook…

FK: Dooo it. [ELM giggles] Later!

ELM: Bye.

[Outro music]

FK: The opinions expressed in this podcast are not those of Stratus Media Ventures, Chimera Media Group, Chaotic Good, or our clients, or our employers, or anyone’s except our own.