Episode 211: The Copyright Conundrum
In Episode 211, “The Copyright Conundrum,” Flourish and Elizabeth welcome prolific fic writer and copyright expert EarlGreyTea68 back to the podcast to discuss her new Fansplaining article, “How U.S. Copyright Law Fails Fan Creators.” After giving a little primer on copyright, trademark, fair use, and how they all intersect with fandom, EGT discusses the ways current U.S. intellectual property law is unequipped to deal with non-monetized creativity—and how the system fails everyone but the big publishers and studios. They also discuss copyright and AI, and whether copyright claims have the potential to take down LLMs and AI tools.
And an exciting note: this episode has a sponsor!! Ellipsus is a new collaborative writing tool that lets you and your co-writers/editors/betas create different drafts and merge them together. They are very anti-generative AI, and they reached out to us because they have roots in fic fandom. Ellipsus is currently in closed beta, but if you use our SPECIAL LINK, you’ll go to the top of the list. We’ve really enjoyed testing it out—and we hope this can supplant Google Docs (ugh) in our fic writing.
Show notes
[00:00:00] As always, our intro music is “Awel” by stefsax, used under a CC BY 3.0 license.
[00:00:37] Our transcriptionist, Rachel, accurately notes that Elizabeth is singing the Dragnet theme, but even more accurately, she is singing the MATHNET theme:
[00:00:52] EarlGreyTea68 first came on the podcast in 2020 (specifically MARCH 4TH, 2020 *ominous music*) to talk about “the AO3 app wars,” aka when fandom was melting down over third-party AO3 reading apps. You can find her on Tumblr, or, prolifically, on the AO3.
[00:01:10] The article that prompted this episode: “How U.S. Copyright Law Fails Fan Creators.” We recommend pausing to read that first before listening to/reading the interview with EGT!
[00:02:09] As a reminder, that’s Ellipsus (see the special note above!) and you can sign up to try the beta (for free ofc) via our SPECIAL LINK. :-))
[00:04:44] Glaze, a project by researchers at the University of Chicago, is “a system designed to protect human artists by disrupting style mimicry.” It adds sort of cloaking layer to digital art that the human eye can’t see, but screws things up for image-scraping algorithms.
[00:05:23] Our interstitial music throughout is “Let that sink in” by Lee Rosevere, also used under a CC BY 3.0 license.
[00:06:30] Luv u, EGT.
[00:12:28] Ahem. Sweaterboy and Absolute Nightmare.
[00:13:13] TO CLARIFY, we don’t know Mulder’s favorite band—just that he likes classic rock. He is canonically a Knicks fan, though.
[00:15:09] For a Tiny Zine collaboration, Maia Kobabe documented this pivotal moment in Elizabeth’s fandom life (and truly captured the spirit of the late 90s):
[00:18:10] The exact language on fair use from the U.S. Copyright Office. The four factors the courts consider are:
The purpose and character of the use
The nature of the copyrighted work
The amount and substantiality of the portion taken
The effect of the use upon the potential market
And that recent Supreme Court case was about Andy Warhol modifying a photograph of Prince; you can read the decision here.
[00:21:54] That’s Kienitz v. Sconnie Nation LLC, and the shirt design was GREAT:
[00:27:12] The Planet Money episode on the GameStop/WallStreetBets-movie arms race—highly recommended for insight into the truly bananas way that Hollywood operates these days.
[00:41:40] If you’re unfamiliar with the Harry Potter Lexicon case, it’s worth looking at the Fanlore page, which captures a lot of commentary from fans at the time.
[00:45:10] That’s Episode 142: “Copyright Brainworms.”
[01:04:06] EGT’s favorite article: Elizabeth’s WIRED piece on Character.AI.
[01:12:55] If you, too, are an arranged marriage fan, here’s a multifandom list in a recent issue of “The Rec Center.”
[01:14:53]
[01:15:12] Treat yourself.
[01:16:10] For Flourish and anyone else who was not aware: “Tumblr Is Always Dying.”
[01:16:55] Zan Romanoff was our most recent guest—on “The RPF Tipping Point”—which apparently served as some kind of inception event because now Flourish loves….
Transcript
[Intro music]
Flourish Klink: Hi, Elizabeth.
Elizabeth Minkel: Hi, Flourish.
FK: And welcome to Fansplaining, the podcast by, for, and about fandom!
ELM: This is Episode #211, “The Copyright Conundrum.” Daa da dun dun. [the first four notes of the Dragnet theme song] [FK laughs] It’s like a, daa, da dun dun DUHHN! [continuing the Dragnet theme song]
FK: [laughs, overlapping] Yeah. Wow. Wow. OK. [ELM laughs] So this episode is going to feature EarlGreyTea68, who has been on the podcast before, and as people may know, is an intellectual property lawyer.
ELM: Professor!
FK: Professor.
ELM: Of copyright and trademark…intellectual…all those things.
FK: [laughs] Clearly we need EGT to like, help us talk about this. [laughs]
ELM: So, EarlGreyTea68 wrote an article for us, which is very exciting, about fanfiction and copyright, and it’s a subject about which fanfiction writers have a lot to say, some of which is not connected to reality, so it’s really great to have an expert, not just to talk about the topic, but to kind of take a stance. So I would recommend reading the article first, and then coming back to the conversation.
FK: Absolutely. OK, so you’re gonna pause this right now, and go read the article, we’ll be here when you get back. [ELM laughs] OK.
ELM: Of course we’ll be here. [both laugh]
FK: That’s the joke, Elizabeth. OK. Now, presumably whoever paused it has paused it, and now we can say the other thing before we call EarlGreyTea, which is that this is a very special episode because it’s the first one that we have ever had sponsored!
ELM: Yes, 210 episodes, no sponsors.
FK: And we’re sellin’ out, baby! [both laugh]
ELM: We did, we did have an advertisement once.
FK: Oh, that’s true.
ELM: A few years ago, where we read the advertisement, but we were approached by a company called Ellipsus, they are a relatively young tech company, and they’re building collaborative word processing software. So they’ve spent time in fandom, in fanfiction fandom in particular, and they were looking to build a better alternative for collaborating with people to write fiction. That’s why they approached us in particular, because they’re in beta right now—if you don’t know what that means, in tech, a beta is kind of when an early version is available for people to try out, and it’s a closed beta.
And so, they offered us some money to sponsor this episode. And we have a special link, so if anyone is interested in trying it out—especially fanfiction writers, which is what they’re after—you should go to ellipsus.typeform.com—that’s https://ellipsus.typeform.com/fansplaining. We will put that in the show notes, we’ll share it on social media, you don’t have to write that down with a pen [both laugh], pen and paper. But that link will get you to the top of the list, and get you to try out this software, which we’ve been trying out for the past week, and it’s pretty great, I think. Like, I’m excited to keep using it, and to keep seeing all the new features that they’re building.
FK: Yeah, absolutely, I am extremely excited to get off of Google Docs. [laughs] And to use something that feels like…nice to write in, and I’m enjoying the aesthetic, among other things. So. Yeah!
ELM: Yeah, yeah, not—because this is like, not only, like Google Docs, lemme just say, for one second—have you opened, have you made a new Google Doc in the last few weeks? Where they have, at the top, they’re like, “Do you want to write a memo?”
FK: Yes. And I’m like… No! Have I once written a memo in Google Docs? No.
ELM: [laughs, overlapping] Never do I want that.
FK: Do people write memos? Who writes memos?
ELM: [laughs] Um…it just feels like a tool that, like, it’s just such a default tool, and it’s not the default for even, even things I need to do at work, right? But one other thing I’ll say about Ellipsus which is really interesting and exciting and I think will probably appeal to a lot of our listeners is they are extremely anti-generative AI, right, and I feel like Google Docs, and every single tool you use is now like, “Do you wanna, do you want AI to make this? Do you wanna,” and it’s like, “Get outta here, I don’t want this!”
FK: [overlapping, laughing] Yeah, “what if we finished your sentence for you in a way that is statistically normative? [ELM laughs] You feel good about that? Fiction writer?”
ELM: So, they are, Ellipsus is against that, which is a big selling point, and I know that on their roadmap they, they even are talking about a kind of um…like, anti-AI sort of cloak, to put on the work you publish, like they have the Glaze for art now that has been developed, which keeps them from being scraped? So I think that’s really interesting too. It seems like a good signal of what kind of product it’s gonna be in the years to come.
FK: Yeah, absolutely.
ELM: So yeah, that’s Ellipsus, as a reminder, spelled ellipsus.com, again, the link to get in on the beta is https://ellipsus.typeform.com/fansplaining. Right to the top of the list. If you try it out, let us know what you think, and thank you to Ellipsus for sponsoring, this is really exciting to be asked, and hopefully we can send some fic writers your way.
FK: All right, so now that we’ve done our business, should we call EarlGreyTea68?
ELM: Let’s do it!
[Interstitial music]
FK: All right, it’s time to welcome EarlGreyTea back to the podcast! Hooray! Welcome back!
EarlGreyTea68: Yay, thank you!
ELM: Thank you for coming on. Thank you for writing such a great article!
EGT: Oh, thank you.
ELM: A polemic.
EGT: You’re so kind to say that, thank you. [ELM laughs]
FK: I’m gonna say, less polemic and more rallying cry?
EGT: Oh, OK.
ELM: I don’t know, what’s, what’s wrong with polemic? Is that a loaded term?
FK: I feel like polemic is like…I guess this is against something, but it’s also for something, it’s more inspirational.
EGT: It’s more, it’s more, it’s a positive way it’s saying it. Yeah.
ELM: Hmm, all right. All right. Cool.
EGT: I’m not usually—I was gonna say I’m not usually known for writing polemics and rallying cries, but now I’ve changed my mind, I think I am known for that, so nevermind. [all laugh]
ELM: I think, yeah, I think you take some stances—of course I don’t know what most of them are these days because I’ve muted the letters “FOB” on Tumblr, so I couldn’t really tell you what you’re writing about.
EGT: [overlapping] My entire Tumblr is muted. For you. [ELM laughs]
FK: Right. OK, before we get into your article, I feel like we should ask you to define some basic copyright things, because…before we can talk about your argument, we need to make sure everybody’s on the same page about, like, what copyright is and how it works, especially in the United States, which is what we’re largely talking about here.
EGT: Right. OK. So…I’ll give you the most basic sketch of it, that is all correct statements, even if I disagree with the correct statements I’m about to tell you. [FK laughs] All right, so.
ELM: Good. Good, thank you.
EGT: So, copyright law is the law of intellectual property that specifically protects creative works. So you will see people talk about intellectual property. There are, broadly speaking, three different types: trademark, copyright, and patent. I say this because a trademark and a copyright are two different things, and cannot be used interchangeably, although you will see mainstream media—sorry, people associated with media—do this all the time.
ELM: Wow. [FK laughs] Wow. Wow. [laughs]
EGT: Just saying.
ELM: I try to get it right.
EGT: I trust you, Elizabeth, [ELM laughs] I think other people do not even know that there is a thing to get right, which is why I’m taking the time to say right now that copyright is different from trademark. Trademark is a marketplace thing, like slogans and logos; copyright is protecting creative works. So, like literary works, like the work of fiction, it protects songs, it protects artwork, it protects computer source code, because we decided that it should…so, all of those types of things, is what copyright law protects.
It’s actually a fairly old law. It’s been around since the early 18th century. It was created in response to the printing press, actually. We didn’t think we needed copyright law when we had no way of replicating writing easily. And then the printing press got developed, and we were kind of like, “Oh, we want people to now own their own creative works.”
So, the way that it works is, if you create something original to yourself—which is a very low bar, it means that you have a modicum of creativity, so it’s really anything more creative than the phone book—literally, we have a case that says the phone book cannot be copyrighted [FK laughs], but anything more creative than that, you own a copyright as soon as you, the term is “fixed in a tangible medium,” which just means that you have written it down somewhere, you’ve recorded it, you’ve gotten it out of your brain somehow. Because, while it only lives in your brain, sorry, you own nothing. So if you have a great idea for a novel, write it down, that’s what gives you the copyright. You can’t show up at people’s doorstep to be like, “I had that idea first!” unless you’ve actually written it down.
Once you write it down though, you automatically have a copyright—it happens automatically, you don’t have to register it or anything like that. So, this is to say that all of us have like, dozens of copyrights that we are creating each day, every day. We are all creating something copyrighted right here, in this moment, while we are recording this conversation, it’s happening, we’ve got a copyright. Every time that you sit down and, even if all you’re doing is writing, like, a little private diary entry to yourself that you never show anyone, you’ve got a copyright in it. Because it’s created, for you, you wrote it down somewhere. And so that’s at the heart of what copyright law is. That’s the definition of copyright. Did that help at all?
FK: Yes.
ELM: That’s great!
EGT: [laughs] OK.
ELM: Yeah, I think it’s much, I imagine many people think that you do have to register something.
EGT: You have to register it to sue. So if you wanna go to court, with your copyright, you have to have a copyright registration in hand. But you’re protected even before you get it registered, right, so like if someone infringes your copyright, you can’t sue until you get it registered, but you can sue based on the stuff that happened before it was registered. Does that make…
ELM: [overlapping] Right, but then you have to do—yeah. Yeah.
EGT: [overlapping] Right, but you have to, if you wanna go to court you have to get it registered. There are advantages to registering your copyright that are mainly, you get more money out of your copyright infringement litigation the earlier that you register your copyright, so like… [FK laughs] That’s, that’s really, that’s the benefit. I mean, that’s getting really deep in the weeds, I don’t think many people are—many people other than, like, professionals, are like, “I have to go register my copyright to make sure I can sue for more money when people infringe me.” [FK and ELM laugh] That’s not how most people think. But that’s the way that they encourage registration.
But I don’t think they actually want everyone registering all of their creative works, because we are all making so many creative works on a daily basis, like, we would swamp the copyright office if we all [FK laughs] were registering, like, every single Facebook post we made. Like, there’s no way that’s what they want, you know? So, yeah.
ELM: Right, right.
FK: Yeah. And so this means like…just to get this clear, which I know people have talked about this a bunch in fandom, and it’s something like…that people at the OTW are often saying, “You should know this!” But. But, just to get it down, you own, you own the copyright to your fanfiction, right? It’s not about, like…
EGT: You own the copyright to what’s original about your fanfiction, right.
FK: [overlapping] In your fanfiction, right. You don’t own, you don’t own, you know, Mulder and Scully, but you do own the original things that you made Mulder and Scully do.
EGT: Right. Right. Yes.
ELM: Clarifying question though, like, what, at what point—like, characters are trademarked too, right?
EGT: Yeah, yeah. Which is a different thing. [FK laughs] But yes.
ELM: But I’m just saying, part of what like…
EGT: [overlapping] No, you’re right, you’re right. Yes.
ELM: …what the rightsholder owns, in a fannish context, like, trademark is actually quite relevant often, right? They do trademark these characters, and…
EGT: I actually think trademark is probably more relevant, a lot of the time.
ELM: Interesting. Yeah.
EGT: [overlapping] Because I think—this goes to my whole theory, right, about just fanfic, not really my theory about law, my theory about fanfiction is that we are all drawn to archetypes, right? We’re all just working in archetypical characters, and that’s why you can do like—someone reminded me recently of that Sweaterboy-Disaster trope thing, [FK laughs] that was like a big thing for Sherlock—
ELM: [overlapping] Abso—it’s, excuse me?
EGT: [overlapping] I’m sorry.
ELM: [overlapping] Sweaterboy and Absolute Nightmare. It’s not a disaster, it’s a nightmare.
EGT: [overlapping] I’m sorry, that’s what it is, I’m sorry, I’m sorry. [ELM laughs] I’d, I’d like, I’d forgotten. That whole thing. [ELM laughs] But anyway, the reason that works in so many different fandoms, I think, is because we’re all working in archetypes, and so I sometimes think that there’s not a whole lot that actually is copyrightable about these particular characters, because so many of them are just archetypes. Like, yeah, there’s specifics, right, and the more specifics that you take, the more you’re likely to take something copyrightable. Like, I don't know much about X-Files, right, like I know Mulder and Scully, I know their basic dynamic, I’ve seen X-Files, I’m just not in like, the fandom of X-Files. [ELM laughs]
FK: Yeah.
EGT: I’m sure that there’s like, I don’t know, favorite musical band that Mulder loves, maybe. Right?
FK: [overlapping] Yes! [FK and ELM laugh]
EGT: Yes. OK. So, that little detail, right, that might be part of what’s copyrightable about his character, because it makes it specifically, recognizably Mulder.
FK: Right.
EGT: But like, not the fact that he, like, is a conspiracy theorist, believes-in-aliens guy. [FK laughs] Like, that’s just an archetype that, you know, a lot of people can fit into that mold. So I actually think that you could make a decent argument that not all fanfiction is taking anything that’s copyrightable about these characters, it’s just taking, like, archetypes, especially if you’re getting into AUs and all that kind of stuff.
FK: Mmm hmmm.
ELM: Right.
EGT: But the trademark implications are probably, like, bigger than we really spend a whole lot of time thinking about, because the trademark, what they’re trademarking is the name. And what we are taking is…the name. Right?
FK: [overlapping, laughing] The name. Sometimes only the name.
ELM: [overlapping] Yup. Yes.
EGT: [overlapping] Right, exactly. Sometimes only the name, and that’s sort of like…that’s a trademark thing. Now the thing with trademark law is, it’s only trademark infringement if people are likely to be confused that what you are doing came from the original trademark holder, and so oftentimes in fanfiction, that’s, there’s no way. But that’s when, like, the old-fashioned disclaimer thing on LJ used to really help out, right?
FK: Right.
EGT: With trademark law, to be like, “I’m not associated with this at all.” That has nothing to do with copyright law, that disclaimer, nothing. But it’s a trademark law idea.
FK: You say there’s no way, but when Elizabeth first discovered fanfiction…
ELM: Oh, you’re tellin’ my origin story…
FK: Yeah, your origin story is about how there is a way. [laughs]
ELM: [overlapping] Yeah, do you know this, EGT?
EGT: I don't know this! No, I don't know this story.
ELM: I wrote, so I wrote fanfiction, like…
EGT: Did you think you invented fanfiction yourself?
ELM: No…
EGT: OK.
ELM: Well yeah, sure, in the sense of like, I literally had no idea, no one else did it, right, because it was like…you know.
EGT: Right.
ELM: There was no internet.
EGT: Right, OK.
ELM: But then when I did get online, I read a fic. But I thought it was, like, a prediction of what was gonna happen in the show. Of Buffy.
EGT: OK.
ELM: That Giles was gonna turn into a vampire.
EGT: It must’ve been a good fic.
ELM: I was like—no, that’s not, he shouldn’t be a vampire, I got really upset.
EGT: No, I’m saying if you confuse it for the real thing, it must be a decent fic, like I’m hoping that you weren’t confusing like… [ELM laughs] like, that, what is the name? Oh my gosh, why am I blanking on the name of that terrible fic about like, Raven…Way…
ELM: Are you thinking of “My Immortal,” which was a Harry Potter fanfiction?
FK: [simultaneous] Yeah, you’re thinking of “My Immortal.” [laughs]
EGT: I am thinking of “My Immortal.”
ELM: A Harry Potter fanfiction?
EGT: Is it—yes, it is a Harry Potter fanfiction. Did you think that it was real Harry Potter, when you read it?
ELM: No, this was in Buffy, first of all. [FK laughs]
EGT: [laughing] OK.
ELM: Much earlier than that. And um…yeah, I just didn’t have any context for it, I didn’t have any way to really understand what it was, right?
EGT: [overlapping] Yeah. That’s fair, that’s fair. Yeah.
ELM: You know? And so like…but this was also the late ’90s, I, yeah.
FK: [overlapping] Yeah. It was, it was a different time. [laughs]
ELM: [overlapping] A different time.
EGT: Yeah. Yeah.
ELM: In so many ways. Bill Clinton was president. [all laugh]
FK: OK OK OK OK OK. So then, so then—
EGT: [laughing] The main difference between this time and that time… [all laugh]
FK: OK, to get us back on the train though. So, but it is interesting, because people usually talk about copyright, not trademark, as the most important thing to do with fanfic, and that usually comes back to fair use. Which is…that’s another, like again this is U.S.-specific copyright law.
EGT: Yes. Yeah yeah yeah yeah.
FK: And…that’s the defense that people say that they would use for fanfic, and there’s been fanfic-related things, not actual fanfic as far as I know, but fanfic-adjacent things that have [laughs] gotten into case law, right?
EGT: Right. Yeah. The thing about the U.S. system, which is the only one I can really speak to intelligently, is it’s very dependent on who decides to sue. Like, we have to wait for a lawsuit before we can, like, have any information about anything. And so when you said the thing about fanfic-adjacent things, not really fanfiction, it’s like…yeah, I don’t think a lot of people consider it to be a real winner to be suing genuine fanfic writers, you know? [FK and ELM laugh] Like I just don’t think, I just don’t think they think it’s a good move for them, financially…PR-wise, right? [FK laughs] So they’re like, they’re not gonna really do it, as long as it’s genuine fanfiction. Usually when they try to do it, it’s when money gets to be involved, because then it is a financial decision for them.
So this is why, though I can say things like, “We don’t really know, we’ve never had a case,” because our law is kind of, like, useless until we have a case, because it’s so abstract and so unpredictable. But fair use is the main copyright defense, like for all things, not just for fanfiction. It’s like the main sort of…in the United States we have the First Amendment, which means we have freedom of speech, and then we have copyright law, which is a huge monopoly over speech where you get to block a lot of other people’s speech, and so the main way these two things coexist together is in the realm of fair use, that we’re like, “No, these things you can still say and do, even though there’s a copyright in play that would otherwise block you.”
It’s notoriously unpredictable, it’s like a four-factor test, and it’s constantly in flux, we just got like a brand-new Supreme Court decision a few months ago that we’re all just kind of like, “I don’t know what this means now,” and so we’ll see what it means. But, in theory, what is seen to be empirically as the most important factor is whether or not the work is transformative, which is why the OTW is the Organization for Transformative Works. It’s a copyright law word that comes from the fair use defense. And the more transformative your work is, under fair use, the more likely it is to be considered OK, that you’re not gonna get in trouble. And the less transformative it is, the more likely it is to be problematic.
And so like, we can tell you really obvious cases, right, like if all you are doing…if you’re literally just copying and pasting Harry Potter, that’s not transformative. All you’ve done is copy and paste all of Harry Potter. I mean, that’s an obvious case, but there you go, that one, the law has no problem figuring out, right? [FK laughs] And then we also know that there—I’m trying to think of, like, a really obvious transformativeness case, and I can tell you transformativeness cases and I don’t think any of them are obvious. Like, the one we just fought over, that the Supreme Court just handed down, was over Andy Warhol, and like, we literally could not decide for years whether or not Andy Warhol’s art was transformative. And like, if we can’t figure out what we’re doing with Andy Warhol, we don’t have—it’s, it just illustrates how difficult it is to answer these questions, so. Yeah.
ELM: Just to clarify, because I think this is something that fans get really—I mean, I, the number of false statements about fair use I see on a daily basis is shocking, I’m sure that you also have experienced this, and as a lawyer you’re probably like…maybe not shocked, but weary. [FK and EGT laugh] So just to, just to clarify—fair use, you’re saying, like our fanfiction is infringing on the copyright of the rightsholder, it’s just an exception under fair use, right?
EGT: Yes… Um…
ELM: Or is that not how you interpret that?
EGT: No, that is definitely right legally. I’m just thinking about how I just said that I’m not sure we’re taking anything copyrightable from the characters, so, like…[FK laughs]
ELM: Yeah, well now we’re makin’ it thorny.
FK: You’re making a more subtle legal argument. [laughs]
EGT: I would not concede that, were I arguing this in front of the Supreme Court, I don’t think I would concede that fanfiction is copyright infringing.
FK: [overlapping] Is infringing at all…
ELM: [overlapping] Strike, strike this from the record. [laughs]
EGT: But, you are correct, as a matter of legal formulation, that fair use only kicks in if you are infringing.
FK: Right.
EGT: You shouldn’t be talking about fair use if you are not infringing. That said, courts love to just jump over the infringement question, much as we just did, and just get straight to fair use without actually asking like, is there any infringement here in the first place. That’s actually kind of what happened in the Andy Warhol case, they talk about fair use the whole time, and a lot of people were like, “Is it even infringement? Did anybody even stop to think about if it’s even, like, infringement, or did we just jump to the defense [FK laughs] without actually, like—”
FK: [overlapping] We as a society just decided that it was infringement. [laughs]
EGT: Because one of the things at issue in that case is about, it’s about a photograph that someone took of Prince, and then Andy Warhol, like, Andy-Warholifies it, and one of the issues is that no one can own what Prince looks like, and so if the only way these two things are similar is that they both look like Prince, then it doesn’t seem like you would call that infringement. And I think that it’s, I think that it probably is infringement, but we don’t really get, like, an analysis of it.
FK: Right, because, because it could be that if, if it was like, you’ve got a picture of Prince, and then you’ve got something that’s not a photograph, that’s like, different than a photograph, that also happens to look like Prince…so? [laughs]
EGT: Right, right. And we actually have a fair use case that is literally that case, only not about a famous musician, and it’s like, this random politician, and I forget which city in America, but apparently he put all these noise ordinances into effect, and people were upset that he had put all these noise ordinances, and so they went onto his website and they took his—basically his, it’s not, it’s before the age of Twitter, but they took like his Twitter avatar, like his public photo, and they made it squiggly lines, you know, they whatever, they did some artifying to it. Then they put it on a t-shirt, and they were like, “Sorry for partying.” [FK and ELM laugh]
And it was so, like…this whole commentary about that. And the court was like, the court says this is fair use, because all you’ve taken is what the politician looks like, and nobody can own—like, that’s not copyrightable, what you look like is not copyrightable, you’re a real person, you’re not copyrightable. But that’s a weird fair-use decision, number one, because probably it should have been, there’s no infringement because you didn’t take anything that was copyrightable.
FK: Right.
EGT: But also it’s just interesting that the Andy Warhol case actually comes at the opposite and finds that it is not fair use. Even though…this is just, this is just the fun [FK and ELM laugh] of being a copyright fair use… So there you go.
ELM: That’s funny. OK, so, to lead us a bit towards the article, one thing that I would love a little clarification on is… You know, it’s my understanding that over the course of the 20th century, copyright law got tighter and more restrictive. Is that true? Like, when did the 70—like, can you explain the 70, lifetime-plus kind of situation?
EGT: Yeah. Yeah. So, that’s what I was gonna say, I think it got longer. I don’t know that it got interpreted more restrictively. That’s an annoying lawyer way to answer your question, sorry. Yeah.
ELM: [overlapping] Oh—to, to—yeah, it is very, that’s great. It’s fine. [EGT laughs] I’m, my father is a lawyer, I understand it.
FK: So wait, [ELM laughs] lemme make sure I understand this, so you’re saying that the length of the time that something is considered copyrighted has gotten longer.
EGT: Yes.
FK: But what you can actually do with the copyrighted work, or what counts as infringement, it’s not that the courts have gotten like, more and more obsessed and more and more tight about what…is OK.
EGT: [overlapping] Yeah, I don’t think so.
FK: OK.
EGT: I think it’s stayed pretty st—I think, that’s a good question that I’ve never really thought about, but I think it’s stayed pretty consistent, but the length of…
ELM: [overlapping] I mean, I—
EGT: Do you disagree? Maybe you have…
ELM: No, no no, I think that I’m using the word “tighter,” yeah, in a non-legal way, in terms of like…just spiritually, it’s just like…[in a strained voice] ughhh, a vice grip on it, just forever, right, you know? [FK laughs]
EGT: Yes.
ELM: You will not let these characters, and these works, out into the world—to me that is tighter, but I absolutely understand the way you’re using tighter here. [laughs]
EGT: Yes. So, I totally get it, because—and I think I’ve now zeroed in on why I wasn’t going your way—I think we have this perception that copyright law has gotten tighter, not necessarily because the courts have—like, we haven’t added any rights, the statute’s kind of been the way it has been—now that I’ve said that, except for on the internet, the internet’s weird—but, I think that…it became such a huge money-making, behemoth industry, in the course of the 20th century, in a way that it really wasn’t in this country in the 19th century, that then what we see is a stranglehold over it, and people asserting rights that are probably beyond what they actually have. [ELM and FK make understanding noises] But it doesn’t show up in the court system, because people kind of—like, so actually the internet—
FK: [overlapping] So are you, are you talking about stuff like, when you get a DMCA—
EGT: Yes.
FK: On a random YouTube video, and you’re like, “What is even infringing in my home video?” And then you realize, “Oh, it’s because like, the radio was on, ah fuck this,” and then of course, do you fight it? No, you just take down the picture of your kid dancing to the radio, right?
EGT: [overlapping] Right. Yeah.
ELM: [overlapping] That’s tighter! That’s tighter! [laughs]
EGT: [overlapping] You, you fight it when you’re a copyright lawyer. But that’s—the internet—
FK: [overlapping] Yes, you, you fight it, [ELM laughs] do I fight it? [laughs] OK, I also fight it. [laughs]
EGT: [overlapping] I fight it. Every time a video of my nieces meeting Santa gets pulled down for the Christmas music in the background, I’m always like, “This is fair use!” And I write a little counter-notification to them. [all laugh] And I do win, I get it reinstated, but most people do not care. It’s true.
FK: So it’s, like, interacting with people more. Because people didn’t ever think about it before, because what would you do, you would like, have your home video, and no one would ever see it, so there would never be a, no one would ever send you a DMCA for that. [laughs]
EGT: [overlapping] No one would ever know, right, right.
FK: But then…now…
EGT: It’s probably true that we all interact with copyright law a lot more than we used to. And so maybe that’s also why we feel it chafing against us, right? Like, I just feel like most of the—for most of copyright law history, the idea was, most people are consumers, they’re just gonna be sitting at home, they’ll buy the books, they’ll watch the movie, and the internet really changed that game plan and made everybody a lot more like…involved in distributing things, and creating their own things, and reusing other people’s things, and so I think maybe we’re like, in the middle of this battleground of interactivity that never really happened before in history.
ELM: I mean, I think my perception of it comes more from, from the rise of franchise development.
EGT: I believe that.
ELM: Right, and…I think that ordinary moviegoers at this point are aware of this, I don’t think this is like, something that you’re only attuned to if you like, do a podcast for eight years with someone who works in Hollywood, you know? [laughs] Just the idea—I don’t know, I was listening to Planet Money a few months ago, when that GameStop movie came out, and they were doing a like, “How did this get made,” right, because there was like, a race to make the first, to get the first GameStop movie in development, right? And the part where I lost my mind was when they were like, “So of course it needed to be based on a book.” And I was like, “Why!?”
FK: Yeah. [laughs]
ELM: I don’t understand this! Right? Flourish, you’re very familiar with this, right?
FK: Yup.
ELM: And so then they got this guy who like, writes, I don’t know, sounds like kinda hacky books, real fast—
FK: Yup.
ELM: To write a proposal in like, an hour, and then he got millions of dollars for it. And I was just like, this is such a broken system, and this is, to me, like it’s not all copyright, but copyright’s involved in this. [laughs]
FK: When I tell you how many people I know who self-publish a random terrible book, not because the book is gonna be good, but because they’re a screenwriter, and they wanna base something off the book that they published, and getting the book out there gives them benefits in the ability to sell this idea. [laughs]
EGT: So is it because of the recognition? Like, why would that, why would that help?
ELM: Well, yeah, the Planet Money thing said it was because it was a strong signal to the market that they, now that they own the IP…
EGT: Oh. OK.
FK: Yeah.
ELM: Then it’s like, well we have this great, great, brand-new IP from this dude who writes other books like this, right?
EGT: OK. OK.
ELM: You know? And they kept saying that over and over, “IP IP IP.” [laughs]
FK: [overlapping] Yeah. Yeah. There’s that, there’s also like, the idea, I think for a lot of people when you’re in development—and I don’t know this for sure, I’ve just sort of heard people talk about it—there’s the idea that when you’re a screenwriter and you’re developing something, it takes a long time to like, do a screenplay and get it all, and get it like, out in the market, and feel secure in your ownership of that franchise world, and there’s a lot of stories where someone was like, talking with a friend…
EGT: Oh, that makes total sense, yeah.
FK: [overlapping] You know, that kind of thing. So if you can get it down in a form with like, the basic ideas, and you have it out there—
EGT: [overlapping] Because you know what happens when you get it down in a form?
FK: Yeah!
EGT: [overlapping] You get your copyright locked in. That’s what happens.
ELM: [overlapping] That’s right, that’s right. [laughs]
FK: [overlapping] And, and you have an even stronger argument if it’s been published, even if it’s been self-published or whatever, right? So that’s a big…
EGT: [overlapping] You definitely do. Yeah. No, that makes total sense. Now that makes sense to me.
FK: And then you can take as long as you want to develop it, yeah.
EGT: Right. Yep, that makes sense.
FK: [overlapping] But it does suck, and it’s weird, it’s weird as hell that almost everything comes from a book IP for this reason.
EGT: Right, right, right.
ELM: But like, not books that anyone cares about, you know, it’s just like…
FK: [overlapping] No no no, it does not matter.
EGT: [overlapping] It’s kind of hilarious, it’s like…the book is the easy thing, write the book quick and get the copyright locked in, and then do…right.
ELM: Yeah, yeah.
FK: Oh, the book is so, so much the easy thing, it’s considered so much the easy thing in Hollywood. I mean like, the idea of doing a novelization, the idea of doing any kind of a book, it’s like, because you don’t have…because you don’t have all of the, you know, cajillions of dollars of the production hanging off of it. Books are hard, don’t get me wrong, I’m not dissing books. And these books are not good books. [laughs]
EGT: [overlapping] I was gonna say, every single writer who’s sitting listening to this podcast is like… [all laugh]
FK: Right? I mean, I’m, I’ve written, I’ve written novel things, I know how hard it is, you know, but on the other hand there also wasn’t $100 million based off of what I wrote into this scene that was getting spent or not spent. [laughs]
EGT: Well right. And I don’t know how these people write these books, but I would imagine it’s also kind of freeing to write something and not be like, “How would we have to film this? How…” like it’s just, just write your story. Just write your story!
ELM: Not only that, this man who wrote the GameStop one, for whatever movie—it’s the movie that just came out, the one that won, right, the other ones, the other projects died because they just didn’t, they announced it was coming together first.
EGT: The Hunger Games of GameStop movies. [FK laughs]
ELM: Yes. It was actually a very interesting episode to listen to, I was like, “Ooh, wow, what a broken system, that’s cool.” [EGT laughs] But, the guy who did it was like, “You know, I’m not a journalist.” He’s written like a ton of very successful books of this nature. He was like, “I’m not a journalist, I have the freedom to just kinda write it like it would be a movie.” And I was just like, [laughs] despairing on multiple levels, I was like, “Cool. Not, not reporting this, actually, just it’s all vibes?” You know? That’s fine. That’s fine, godspeed to him, congrats. Anyway. Back to the question. Copyright, copyright.
FK: [overlapping] Wait, but it’s, but it’s interesting…that we’re on this point now, because we’ve now gotten sucked into talking about like, the big-budget thing, which is, like, sort of the point of your article.
EGT: Right.
FK: Is that like, when we talk about copyright, we are talking about this stuff, and we’re not talking about most of the things that are actually copyrighted, or that the ways that we really interact with copyright in our day to day lives, by writing some, some little thing, you know? Writing a fic or whatever we’re writing, and having our copyright for a thing we’re never gonna sell.
EGT: Right. And it’s kind of like…this point already came across when Elizabeth asked the question about registration, and I was like “They wouldn’t want everybody who’s writing something copyrighted to register,” this would be impossible for them to deal with, if we all had to run around and register, like, every time I started this fic that I then, you know, was like, “I don’t know if this is going anywhere, but I’d better register it to protect it!” They would, they would die, the system would not work. And I don’t think that we in the law talk enough about how much this system would not work if we actually were seriously trying to protect like, creativity.
FK: I feel like there are like, probably you could hand-pick maybe 20 fanfic writers, and they alone could topple the system with [laughing] all the things they would—you know? [ELM laughs] We don’t need all of the fanfic writers, we just need our top troops. [laughs]
EGT: [overlapping] Oh yeah. Yeah. We just need like, 20. [FK and ELM still laughing] Right, just send them, send them into battle and see what happens. Um…but I was thinking about how like…so I knew I was coming to talk to you guys, and I was like, “How can I summarize, how do I feel about copyright law?” And this is a theory that has been many years in the making, and I think it’s probably been influenced by the pandemic and now I’m just like, an anarchist about copyright law, and I feel like, before I had more hope in my heart.
But I, um… [all laugh] I, so, the story that I just told you, about copyright law, and it’s an old thing, and the printing press and all this stuff. The story that we say about copyright law is that we put it into place in order to incentivize creativity. That we think it’s awesome to have creative works, and so we protect them with copyright, because we want to encourage people to create more creative works.
And I think that the story that we tell is a lie. [FK laughs] I don’t think that we do need to incentivize creative works, I think people will create with or without copyright law, because I think that many people who are creating are doing it without having stopped to look up copyright law and how it affects them. I think we need copyright law to motivate the like…I’m gonna say middleman people, but the people a layer above the creators, right? Like, the movie studios who are gonna make the movies, the publishing companies who are gonna publish the books. Those people need financial motivation, those corporations.
The actual creators? I just never hear from people who are actual creators, who feel like copyright law is working for them, they’re super happy with it, they’re making—I mean like, I guess Stephen King is super happy. I don’t even think he is, though, right? Like, there are people who are making a lot of money off of their creativity, but I don’t think even they feel like the system is working for them, I feel like they just feel that they got fortunate in how the chips got played, right?
But I listen to the musicians who never think there’s enough money coming out of Spotify for them, and there are, like, many issues with the Spotify model, but also all the money is getting stuck at the record labels. Like, it’s not really all Spotify’s fault, it’s set up to sort of…funnel the money up to those people at the top, is how I feel that it’s been working.
ELM: This is really interesting to me, because I…and I suspect you do follow some of these people…but on ye olde Twitter and now Bluesky—
EGT: Yes.
ELM: I see copyright lawyers speaking critically of copyright, which I’m really into, and then I see a lot of smaller novelists, you know, many genre people, just simpin’ for copyright. Flourish, you’re waggin’ a finger, do you not think this is right?
FK: Oh! I think this is right, and I think it’s the classic thing, right, in the U.S., about how people vote against their interests, for instance on, like, tax issues, because in every person’s mind, they’re going to be a billionaire tomorrow, right? [laughs]
EGT: Right, they’re the next…
ELM: Well…no, let me defend, let me defend a like, a smaller writer a little bit. I think that the margins are already so small that they feel like…
EGT: Yeah.
FK: That’s true.
ELM: You know, and it frustrates me, because I’m like, “You’re defending a system that, that, yeah, screws you over, too, you’re defending Disney’s greatest friend,” right, you know?
EGT: And I don’t think…I don’t actually, I feel like I have this—and it’s really difficult for me to articulate it in a legal way—but I don’t want to say that nobody owns anything, and nobody should get copyright over their creativity, that’s—when I’m criticizing copyright law, I’m not like, “Oh, it’s a free-for-all, everybody do whatever they want.”
ELM: Do you know the, like, idea landlord thing? You’ve heard about this right?
EGT: [overlapping] No, what’s that? No!
ELM: People come into these people’s mentions and they’re like, “You’re like an idea landlord,” right… [laughs]
EGT: Oh, there’s, there’s so much talk about landlordage in copyright law, and like…
ELM: [laughs] Yeah.
EGT: There’s this whole weird quasi-connection because it’s called “intellectual property,” and some people are always trying to—
ELM: [overlapping] Property…
FK: [simultaneous] Ohhhhh.
EGT: But I never—and that’s a very common thing to do, in the IP world, but like, I took property law once, 20 years ago, I don’t, I can’t talk about landlord/tenant law, I don’t know if there’s landlordage going on or not.
ELM: People just love to just label a—
FK: [overlapping] Wait, is landlordage a specific—you’re talking about landlordage meaning landlordage is a specific kind of—
EGT: [overlapping] Well, I made up that word, I think, I don’t know if landlordage is a word.
FK: [overlapping] OK OK OK, I was hoping that there was a legal, a legal type of thing called landlordage. [laughs]
EGT: [overlapping] I’ve just seen… [laughs] I don’t think so. But I have seen what Elizabeth is referencing, that people are constantly accusing other people of being landlords, whenever a copyright…
FK: Yeah.
ELM: Landlords of things that—yeah yeah yeah.
EGT: [overlapping] Yeah. Right.
FK: [overlapping] Well I mean, you know, it’s not totally…when I think about the way that like, IP-based novels are written, not novelizations, but like the Star Wars or the Star Trek novels or something, like…I can imagine that as a…way to think about it, you know? [laughs] I mean…
ELM: Well, yeah, but these people are always coming into mentions of the person who, like, to further this metaphor, built a small house, and…
FK: [overlapping] Yes, yeah yeah yeah, I understand, I understand.
ELM: [overlapping] And, I don’t know, are charging you for a night at the Airbnb, [FK laughs] it’s not even like you’re renting a room in the long term, you know?
EGT: [overlapping] Right. Yes.
FK: [overlapping] Yeah yeahyeahyeahyeah, I hear you.
EGT: [overlapping] So I, I’m probably wrong to have said that I was, like, a copyright anarchist, [ELM laughs] because I don’t actually want like…I don’t wanna do…but I do think I would like to restart the whole system, I think it’s like, we need to think more carefully about what we’re actually doing. Because I think that my issue with it is, it’s prone and supports way too much exploitation of the people who are actually doing the work. Much like capitalism, right? And so, I’m kind of like, [ELM laughs] I think it’s all linked together, and obviously copyright can’t solve the problems of capitalism on its own, but I think it’s structured to sort of support this very capitalist system. There’s income inequality in copyright world, in the same way that we see it in, like, the bigger world, right?
ELM: Sure.
EGT: Everybody’s sitting at the top like, pulling everything in, and the rest of us are scrambling for smaller and smaller crumbs coming from that.
FK: Mmm.
ELM: Do you feel like the smaller creators that we’re talking about right now—who yeah, I do think sometimes are arguing against their own interests, but I understand why they’re doing it—are at odds with the fanfiction writer?
EGT: At odds… [sighs] seems like a strong word. And I don’t know that it’s, like, an active at-oddsness. But I think, often, they think about creativity differently than the fanfiction writer does, that they’re thinking about it in a more financial transaction sort of way than I think… And I don’t wanna make that, “only fanfiction writers don’t think about art in a non-financial way,” I think a lot of amateur creators don’t think about it financially. But I think the people who are out there kind of hustling, trying to make it, think about it more financially as a, just, matter of, that’s what they’re trying to do. They’re hustling out there trying to make it, so they are thinking about finances more, I think.
ELM: Right.
FK: I really connected with that in your article, because I think that it relates—it does, I mean fanfiction is sort of the central thing, but it made me think also about, you know, I’m a very dedicated knitter, [laughs] and like, this is something that constantly is coming up in those spaces also, is the question of who’s trying to make it financially, in what way, and who’s, who is doing this for the love, and who is doing this for like, fine art, and who is doing this for money, and those things are all overlapping, and how do they work? And it’s very clear that there are people—it's a spectrum.
EGT: Yeah.
FK: Maybe more than just a single spectrum, [laughs] it’s like, you know, it’s like a plane, and people are in very different places. And that changes their attitudes toward, like, normal behavior in huge ways. [all laugh]
EGT: Yeah. And I think that’s fine, I don’t think there’s anything wrong with everyone having all different attitudes toward what they want out of their art, and what they’re getting out of it, like, that’s fine, that doesn’t bother me.
I think in the article—and I think I’m just always more trying to argue for, we’ve set up a system though, that sets up a hierarchy where—like I just said, I think it’s fine, whatever you wanna do, and I don’t think the system thinks that. I think the system thinks if you’re not interested in making money off of it, we don’t really care about you, you’re kind of on the outside, and we don’t have a law that applies well to you, or that we even know how to apply to you, because everything we’ve set up in copyright law has been so focused on the financial transaction that if you walk into court and you’re like, “Well, I’ve never sold this a day in my life,” a judge is gonna be like, “What are we doing here then? Who cares about your thing?” Right?
Because—and in a way, again, that makes total sense for a judge to say, because judges have limited resources. Like, they’ve got a lot to do too, they’re kind of like, “Why are you wasting my time,” because we’ve set up a society that makes money the big thing. So…yeah.
FK: Right. And yet, people, when we get into arguments like this, people are asserting the morality of…right? Like, the moment that you get into arguments about this, even when the law is talking about money, people instinctively—
EGT: [overlapping] People are couching it in…yeah.
FK: [overlapping] Well, the law couches it in morals, and like, PR people do. [laughs] I mean, I’m thinking about like, I don’t know, the um…Harry Potter Lexicon case.
EGT: Oh yeahhh…
FK: Which was sooo couched in morality of, you know?
ELM: [overlapping] Mmm hmmm.
EGT: [overlapping] It was awful, yeah.
FK: [overlapping] Right? And like, look, I’m not here to defend Steve Vander Ark and—or any person in this, in this fandom that I have broken up with so deeply.
ELM: You’re not defending uh, J. K. Rowling. [laughs]
FK: No! I’m not defending anybody. But I think, particularly looking back at it, the level of moral outrage that comes up around some of this stuff, it’s like, WHOOAAH, guys! My friends. [laughs]
EGT: It’s a little extreme. And I think that’s because moral outrage often wins cases, it wins things in PR, right, it wins a court of public opinion, and so the law, at least in the United States, is very explicitly, supposedly, not moralistic. But the arguments are often, yeah. Like, I mean, J. K. Rowling got up and like, wept on the stand about how awful the—
ELM: Mmm hmmm.
EGT: You know, and it’s just kind of like…
FK: [overlapping] Steve, I mean, Steve Vander Ark basically went from like, from being a person who was, you know, again, I’m not, it’s not like the guy’s my best friend, but he was like a normal part of the fandom community, and the next day he was a complete pariah who was absolutely banned from every possible thing, right? It was pretty extreme.
EGT: I consider that a very tragic case. He was very reluctant to—in my understanding, the way the case goes—to publish the Lexicon, like he asked to be indemnified by the publisher because he didn’t think it was actually legal, and that’s very unusual. Like, most publishers won’t indemnify you against copyright infringement lawsuits, they, they’re, that’s on you.
FK: Yeah.
EGT: And that flipped for him, because he clearly was hesitant about the whole thing, and I just…I feel kinda bad about how it all played out. I don’t know.
ELM: Also, not to talk too much about Harry Potter, but the galling thing about that is she never even wrote a fucking encyclopedia!
FK: [overlapping] She never wrote the thing! [ELM laughs] She said she was going to write! That was the reason wh—anyway. [laughs]
EGT: Well, but…that’s true, that’s very, I totally agree with you on like… [ELM laughs] On many, many points.
ELM: That was the point!
EGT: But legally, legally, she doesn’t have to. Like, if it’s her right, she can just block everyone else from doing it.
ELM: [overlapping] No, I know, but fuck her!
EGT: But right, yes, she, like, was lying on the stand or whatever.
ELM: It was a really valuable resource in the 2000s, for fanfiction writers and all this, [FK laughs] and aughhh!
EGT: [overlapping] Yes. Yeah. But, it actually, but he wins the case, Steve Vander Ark actually wins that case. Like…he loses the case, but like, Warner Brothers got awarded like, $2,000 or some crazy tiny amount. Like, nothing that covered their legal fees, even a little tiny bit. And he had to change, like, a few entries in the Lexicon, and then they published it.
FK: Yeah, but it didn’t—but then, like, he lost the court of—no one bought it, you know? [laughs]
EGT: [overlapping] Right. I mean, the rep—yes.
ELM: [overlapping] The court of fandom opinion, right.
EGT: [overlapping] That’s, right, all of you guys saying this, right, he actually wins, like, the narrative is that he did something—he actually wins that case. She does not have the right to block people from doing encyclopedias, that’s the ruling on the case.
FK: Right. Right. But it doesn’t matter—
EGT: But it doesn’t matter. Yeah.
FK: Because we all remember him losing it, because we all remember—I mean I shouldn’t say “we all,” but anybody who was in fandom remembers how one day he was there, and then the next day he was totally, like, shunned.
EGT: And this is why, for a lot of, like, it doesn’t even matter what the outcome of the case was, right, that’s what you remember. Like, yeah.
ELM: Yeah.
EGT: Even though the actual holding of that case, that I teach my students, is that you do not have the right to block people from doing encyclopedias of your work, like that’s what the case tells us, you just have to be careful not to take more than was necessary, that’s where he runs afoul, but yeah.
ELM: This is all reminding me of, this is something that Flourish and I have talked about a fair bit, this kind of idea of like—we had an episode actually [FK laughs] called “Copyright Brainworms,” I believe was the title.
FK: I’m sorry, I shouldn’t laugh at our own title, but it was a great title. [laughs]
ELM: It was a pretty good title, I’m not gonna lie.
EGT: [overlapping] Well done, well done.
ELM: [overlapping] Thank you.
FK: [overlapping] Patting ourselves on the back.
ELM: Which was, if memory serves, because it was a couple years ago, predicated on a bunch of famous things coming into the public domain, including The Great Gatsby, and just the rash of media coverage and tweets that were like, “Now you can write that Great Gatsby, you know, remix.” And it’s like…nnnow? [FK laughs] Now? And not for the last hundred years? You know, when you could’ve?
EGT: [overlapping] Yes, but the key point was, now you can write that Great Gatsby fanfiction and make it into a movie, right?
FK: But you probably could’ve anyway, frankly! [laughs]
ELM: Yeah. Honestly.
EGT: Yes…but…
ELM: Some of the like, transformativeness of the adaptations that have come out since, it’s like, you probably could’ve done this before.
EGT: Right.
ELM: But the point is that like, people were not even, on my feed, they weren’t like “You can write it and sell it,” they were like, “Now you’re free to think—” not even write, they were like, “Now you’re free to think about it.” And it’s like, [gasp] what? What? [laughs]
EGT: [overlapping] Yeah, that’s true. No. That was, so, you asked a really long time ago about the length of copyright terms, and I never answered the question, [FK and ELM laugh] because we got caught up in, like, semantics about what we were really talking about.
ELM: [overlapping] Great.
FK: [overlapping] That’s true! [laughs]
EGT: But the length of—
ELM: [overlapping] That’s why we have a lawyer on. [laughs]
EGT: The length of copyright terms have expanded like, radically during the course of the 20th century.
ELM: Right.
EGT: When we started the 20th century, I think we were at 28 years, and now we’re at life plus 70, like that’s what happened in 100 years, right? So they got very very much expanded. And what happened was, they were at life plus 50, until…I don’t know, what was it, ’96, is that when it happened? That we added 20 years on? I’m losing my dates. But anyway, we added 20 years, and so what happened was that froze the public domain for 20 years, right, so nothing entered the public domain for 20 years.
And in those 20 years, this really terrible thing happened, which was that a bunch of people came of age, and nothing ever entered the public domain, and they considered it very strange that anything would not be owned. Because they stopped knowing about this concept that copyright expires.
And it’s not like everyone’s going around all the time talking about copyright expiring, but I remember when the public domain started back up again, how many tweets I saw where people were like, “Hang on, now no one’s gonna own, like,The Great Gatsby? How could that be?” [ELM laughs] And I’m like, no one is supposed to be owning all of this stuff for as long as it has been—you know?
ELM: Yeah.
EGT: But it’s like, the default position that we have is that everything is owned, so the idea that something that you might recognize, suddenly one day was owned and the next day is not owned, that blew people’s minds. And I think it was because of the, the freezing that hap—like, for 20 years nothing entered the public domain, and I think people, like, forgot about this idea that copyright’s supposed to expire, and move on.
ELM: That’s really interesting, because I feel like it coincides directly, and maybe just coincidentally, with the rise of the internet and exposure people have had to the production side of Hollywood in particular, right?
EGT: That is really interesting, and I do think it’s just coincidental, to be honest. But yeah.
ELM: Yeah, but I think that’s a huge part of it, like we talk about this all the time, people being like, you know, arguing about whether Sony or Disney is a good steward of Spider-Man or whatever, you know? And it’s just like, why are you talking about these corporations? You know what I mean? It’s like…
EGT: [overlapping] I don’t even know…to me it’s like, I don’t even, I’m not even sure…the way that all of the IP went down for comic book stuff is like, a special tangle [FK laughs] of like, hell.
ELM: [laughs] Sure! Right.
EGT: Right. So to even be talking about that, it’s like, we gotta go way back. We gotta go way back many, many decades to be like, [laughing] I don’t even know if these people have the copyright, honestly, but… But anyway.
FK: Well, and it’s also trademark, right, like even more for comic book characters than for anything else, right?
EGT: [overlapping] Well yes. Yeah yeah yeah.
ELM: [overlapping] Sure.
FK: Because like, basically what is Spider-Man? Spider-Man is the suit. [laughs]
EGT: Is the trademark. Right.
ELM: Yeah. But it’s like, there’s these legal things, but there’s also, yeah, this moral idea, or like, with that one, they were arguing about who was a better dad or whatever, you know, and a part of it is artistic, it’s like, oh, those movies, I think that, I don’t wanna see the X-Men go into the MCU because I don’t like the MCU movies, and I like the—you know what I mean? But it’s like…so there is an element of that, but there’s also some sort of way that this corporate ownership gets into our mind and kind of shapes our perceptions of these stories, I feel like.
EGT: Well, and I feel like that plays into what you said about people being like, “Now I’m allowed to think about The Great Gatsby.”
ELM: [overlapping] Yeah. Yeah.
EGT: We’ve gotten so used to being dictated to, it’s like, no, you’ve gotta be part of the, it’s a give and take, you know?
FK: But ironically, this is also coinciding with the time that fanfiction hit more mainstream knowledge, right? You know?
ELM: Sure.
FK: I mean, so and I think that there’s, I think there’s something to be said, maybe we could frame it—I don’t know if this is true, it probably isn’t—but like, we could frame it as, there’s a backlash happening to this. Which is that if there’s no, you know, there’s no way for people to talk about this stuff then they’re gonna do it anyway.
EGT: Right.
FK: And you know, maybe it’s going to have weird moral anxieties around it, as has happened with fanfiction more or less at different points, and still happens in certain circles. Maybe it’s going to have weird misunderstandings about what you’re doing, and not-weird ones because copyright law is impenetrable. [laughs]
EGT: Right.
FK: But it’s gonna happen, right? To your point that creativity wants to happen, we don’t need to promote creativity, people are already thinking about this, you can’t—people were thinking about The Great Gatsby when they were being forced to read it in sophomore English class. Like, dozing off, being like, huh! I wonder what would happen if he just picked up a gun and shot everybody here, because I…you know? [EGT laughs] Like, I don’t know.
ELM: [overlapping] Is that what you thought when you read it, Flourish? [laughs]
FK: I was trying to think of what a disaffected high school student who really hated the book might be imagining. [laughs]
EGT: They were probably being assigned to write Great Gatsby fanfiction, like, by their teachers, right?
ELM: Sure, sure.
EGT: It’s like the different—you know, it’s a given definition of fanfiction, right?
FK: Right.
ELM: Well, you say that, but actually I think they’re probably being told, “What are the themes,” and then if they had a different interpretation than the right answer on the test, they were told they’re wrong, and so…
EGT: No, I feel like some teachers who were like… You never had teachers who were like, “Rewrite the ending?”
FK: [overlapping] I wrote, I wrote some fanfic, yeah. I did.
ELM: [overlapping] No, but I’m talking about the way English has been taught in the last few decades in our schools, which is not only to like, stifle any creative thought about something, but to like…even stifle analysis.
EGT: [overlapping] Yes…yeahyeahyeah. Tell you what it means.
ELM: [overlapping] Yeah, and just, you’re trying to reach one meaning.
EGT: [overlapping] And I guess it also goes back to like…we’re so used to just being told everything, and not like, engaging with things.
ELM: Yeah.
EGT: But the rise of fanfiction, Flourish, like you were saying, I think it’s all, I feel like it’s just all coincidental that all this stuff kind of happened at… Like, I think the fanfiction thing is really a function of the internet making it much easier for people to find each other, right?
FK: Yeah.
EGT: That people have always been writing fanfiction and we know that people have always been writing fanfiction, and that it becomes a thing because now you can like, find it much more easily than you could before.
FK: I like my narrative better, even though it’s probably wrong. [laughs]
ELM: Yeah, I don’t know about this.
FK: [laughing] I, I’m, I… Don’t like messy reality, I like to have a narrative that uh, sticks to my opinions. [FK and ELM laugh]
EGT: Your narrative could be correct, there’s no right or wrong. [ELM laughs] There’s many, there’s many influences.
FK: [overlapping, laughing] There, sometimes there is, EGT. [all laugh]
ELM: Yeahhhh… I don’t know about that, I don’t know about that. Um, I know we’re short on time, I want to talk about AI a little bit.
EGT: Yes.
ELM: What a fun topic. I know you love AI and you just find it so delightful.
EGT: [fake cheer] I’m so happy about AI. Yeahhh. [ELM and EGT laugh]
ELM: For the record, EGT was skeeting the other day about how depressing, how depressing you found it.
EGT: [overlapping] How depressing I find AI. Every time I have to do research into AI, I finish by just being like, there’s no hope. [all laugh] For us as a society. For us as a civilization.
ELM: Cool. All right. Thanks for comin’ on, it was really great to talk to you, goodbye…
EGT: [overlapping, laughing] Thanks for having me, that’s my statement on AI. [ELM and EGT laugh]
ELM: So…my understanding, talking to copyright lawyers about this right now, is it’s extremely unsettled. Is that your assessment? Like, there’s no, you can’t rely on, on copyright to be some sort of savior to save us from AI.
EGT: OK. Yeah. So several things. First of all we don’t have a court case, and so like I said with U.S. law, we have to wait for a judicial decision, so yeah, it’s all unsettled because we’re all just like, pretending that we can apply the law in a way that is predictable, but we don’t really know. And, I think that there are legitimate disputes that people are having about how the copyright law applies to all of this situation.
But I also think that, to your second point about copyright law being the savior, I’m not entirely—yeah, I just am not entirely sure that we’re gonna handle this with copyright law. Like, this thing that we created in 1709 for the printing press. I don’t, I don’t know that that’s the best way to be doing this. But, I also get why we’re doing it with copyright law, because I don’t think we have any other law [FK laughs] right now that’s existing that’s better. Like the FTC seems to be getting involved a little bit with deceptive trade practices and stuff—
FK: Yeah.
EGT: So maybe, but that’s a different question, that’s like, all output-related and not input-related.
ELM: Yeah yeah yeah.
FK: The question that I have about this is, from the way that I understand, you know, the kind of AI that were talking about here, like ChatGPT, right?
EGT: Yup yup yup.
FK: Which is the kind of system that you’re training on a huge corpus of input, there’s a huge corpus of input, yes, that’s going into it, but the output is not…it’s, it’s not, it’s entirely separated from the input in any meaningful way. So, I mean, even though it can hallucinate something that is quite close to the input sometimes, the actual mechanism by which that is happening is demonstrably not copying, right?
EGT: Right, right.
FK: And that seems challenging. [laughs]
EGT: So…yes. And the output question is so case-by-case, right, like… I can totally envision, and it would not surprise me at all, that AI would produce something that would be copyright infringing of something else.
FK: Sure. Yeah.
EGT: Like…to me that’s not impossible at all, that that would happen. But it’s clearly not every output, and so you’d have to like, wait for that output, and then—you know? It’s like, that’s hard, so really the question right now is the inputs—like, the courts so far have not been convinced about the output arguments, because they’re like, “Show me the output, I get what you’re saying that hypothetically it could happen, I wanna see like, where did it happen, walk in here with a court case about it.” Because you said, if you just look at the outputs, you have to find a copyrighted work it’s substantially similar to, and they’re just…not necessarily hitting that point yet. No one’s walked up with one that is like, “Oh look, it recreated my novel.” Or even my short story. Close enough, you know?
FK: [overlapping] Or, or an image, right?
EGT: [overlapping] Right, or my image, right.
FK: [overlapping] Like, you can see influence, which is the thing that gets a lot of—
EGT: Yes, yes, yes.
FK: A lot of artists are upset because their style is being copied on some level. But it’s like…you’re seeing influence here, and you can see influence in human artists in very, in identical—not identical, but very similar ways, and we don’t think that that’s infringement, so although you’re upset because you know that…
EGT: [overlapping] Right. The way we define infringement wouldn’t have given you the power to stop a human artist from doing that, so why should it stop a computer artist from doing that. Which makes total sense as a, like, a sentence that I just said… [all laugh] But also the underlying assumption of that sentence is that we should treat humans and computers exactly the same—
FK: RIGHT…
EGT: And that’s like, a big, that’s a big assumption that isn’t gonna be answered by copyright law, that we should probably just be [FK laughs] talking about as a society. But yes. If you’re gonna treat humans and computers exactly alike, then…you can’t stop a computer from doing something that you wouldn’t stop a human from doing, right? That’s how the argument goes with the output section.
FK: Yeah. Well, and then that gets us also into the question of like, is the computer doing it, or is the human who programmed the computer doing it, in which case, right?
EGT: [overlapping] Yes, which is…
FK: Which we’ve, which I know has been covered to some extent in code, in issues about code, but now it’s like, the code is—I mean, people have been trying to make—I mean, not just trying, people have been making code art for years, but now the code art looks like art that someone might [laughing] have made as a human, and so now we have to have this argument, right?
EGT: And then that also introduces, like, is it deliberately looking like the art that someone made as a human? Did you ask for that when you put the prompt in? And then, like, how closely were you ask—I don’t know, did you have, were you literally sitting there looking at the drawing being like, “Draw me…” I don’t know. I’m making something up. “An elephant with a hat sitting under a tree, and it’s a pencil sketch, and it’s gonna be in the style of this person’s name who drew this that I’m looking at.” You know? I don’t know, at a certain point I feel like maybe you have responsibility for trying to make the AI be substantially similar to the existing art, but that presupposes a lot of stuff, like that’s a human input going in there, you know?
ELM: That’s a question, actually, do you know if any of the potential cases that they’re talking about have dealt with the actual prompt engineering?
EGT: No…so, in my understanding of all the cases that I’ve seen, they’re all class-action lawsuits that are very…generally…
ELM: [overlapping] And they’re like…about the, they’re about the corpus, right? They’re like, “My novel…”
EGT: [overlapping] They’re about the corpus being copied, and the assumption that because the corpus was copied, the output will be the same. Not about the prompt engineering. Which I would think could not actually be a class-action lawsuit, because much like the output—so when I say class action lawsuit, we’re saying that there are things that, like usually you have a class-action lawsuit when there’s like, a big oil spill that affects everybody in the town the same way.
ELM: Mesothelioma. [laughs]
EGT: Right. Mesothelioma, right. Something, some big tort that’s going to affect a bunch of people in the same exact way.
ELM: Yeah.
EGT: And I think that the prompt engineering, you’re not gonna be able to get a class action, because like…that’s a very case-by-case, what did that human say to the AI to get it out, how can a bunch of people bring that case, you know?
FK: Right.
ELM: Yeah. Right.
FK: So we’re getting back to the problem of, it doesn’t feel good, like I don’t love the fact, I feel sure that AIs have been trained on things I have written on the internet, right?
ELM: Sure.
EGT: Yes.
FK: That feels certain at this point. [laughs] Given how long I’ve been on the internet and the things I’ve written. And I don’t love knowing that. But it seems like the issue is that I personally may not be able to prove, under copyright, under the current framework of law that we have, I’m not gonna be able to go and be like, “Yeah, this is me,” you know? [laughs]
EGT: Right, but here’s the deal.
FK: There may be another framework.
EGT: You probably can prove, under our existing copyright law right now, that your work was copied without your permission by these people who made these data sets, right?
FK: Sure.
EGT: That’s copyright infringement. Boom. They’re arguing fair use, right, so now here’s where the fair use comes back in.
FK: Right.
ELM: Yeah.
EGT: So you actually have a copyright infringement case, against every single one of these, on the face of it. Because they copied—so it’s not that the output is the problem, it’s that they made a copy of your work without your permission, to do something with, that’s actually, the first right we ever had under copyright was the right to copy. That’s why it’s called a copyright. You’re the only one who can make copies of your work, so if someone else has made a copy without your permission, then that’s a copyright infringement. But…
FK: [overlapping] Although then the, although I’m fine with people downloading my fanfiction or like…you know?
EGT: Well, but that’s with your permission, because you’ve put it on a website that allows for downloading. Like, I feel—
FK: [overlapping] Yeah, well, so all the stuff that they’ve scraped was on a website that allows for downloading, right? [laughs]
EGT: Well, right. So…yes. Now…well, yes, but they didn’t individually download—like, they scraped, and now we’re like, as far as I can tell with the tech stuff, you can do stuff to stop it from being so easily scraped. I don’t know. I don’t, that’s the part I don’t understand. But I think there’s a difference though.
ELM: [overlapping] Well…right, but they didn’t get permission.
FK: Sure.
EGT: Right. I think that there’s a difference in saying, “I’m putting this on a website for you to download it for if the site goes down, and you want to read my fic…”
FK: Yeah, or put it on my Kindle or whatever, yeah.
ELM: Yeah.
EGT: Right, and saying, “I want you to use my, I’m putting this on a website so you can train it to mimic me.” [FK laughs]
ELM: Right.
EGT: Those are two different things, I think, right?
ELM: It’s like, I find the…I don’t know how much you follow the fanbinding people, but I find them so interesting, they are the loudest gift economy—pro-gift economy fan-creating group currently on the internet, right? You know? And it’s like…
EGT: Yeah. And they do great stuff. Yeah.
ELM: Yeah, it’s beautiful, but it’s so interesting to me that it’s like, a group that is, ostensibly, they are the ones who are making a copy of your work, a literal copy, right?
EGT: Yes, that’s true.
ELM: In the oldest-school way. But they’re so loud about how it’s totally about the gift economy, and they’re never gonna take money beyond material cost or whatever. And I find that very interesting.
EGT: [overlapping] That’s so interesting, yeah. I feel like they’ve always asked my permission, but I guess [laughing, FK laughs] I wouldn’t know if they’d done it without my permission, so now that I’ve said that…
ELM: I think, I think a lot of them do, but I don’t know, I saw, you know, I also think that like…yeah, it usually seems like they tell you, right? They tag you.
EGT: [overlapping] If there’s anyone listening, I don’t care about book, like, the bookbinding, that’s fine. If anybody’s listening who’s worried that they didn’t ask, I’m not gonna go after you.
FK: [overlapping] I was just gonna say, I also feel like, you know, not that anyone’s doing this with my work, but like…[laughs]
EGT: [overlapping] But I get why people might be, like you’ve lost control of your work in a way that maybe you were not anticipating doing? I don’t know.
ELM: Well, I think it’s…I think it’s just a more beautiful version of like…
EGT: I think so, too, I have no problem with it.
ELM: But you know, they always say, do the blanket permission for podfic or whatever, or translation.
EGT: Yes, yeah.
ELM: And like, for stuff like that, yeah, it’s nice to be asked, but they don’t have to.
EGT: Well, I always think it’s like—see, I know I’m an annoying copyright lawyer, right, and so I’m like, I get it. I have blanket permission in place, but I also don’t feel like I can block any of this stuff, because I’m sitting here doing—right? [ELM laughs]
ELM: Yeah.
EGT: I’m making transformative works, you make transformative works, we’ll all make them together. I would be annoyed if you started selling my fics as books, without my knowing about it, that would bother me.
ELM: Yeah.
EGT: But I think that is moving out of the gift economy that I feel like we’re all engaged in. And I feel like…it’s sort of like the AI thing, right, to get it back to the AI thing. There’s a scope of what I feel like I’ve done with fic, and I’ve put it out into the world to be part of this fic community, and to be used by other fans, and enjoyed, and whatever they wanna do with it. Except that I don’t want them to go beyond the mores of the fic community. And in the same way, it’s like, I think AI is not at all engaged in that community, at all, right? And so…
ELM: Well, they are! Didn’t you read my article about Character.AI?
EGT: [overlapping] Oh, I did read your article [groaning] about Character.AI.
FK: [in the background, groaning] Oh man…
ELM: [overlapping] They’d love to supplant our fanfiction with some cool chats.
EGT: [overlapping] And that also, that also depressed me, Elizabeth. It depressed me.
ELM: [overlapping] Oh, it was…it was depressing to report.
EGT: [overlapping] Like all AI things, [ELM laughs] I was depressed after I read that article, though yes. Um…but to get back to the AI. [ELM and EGT laugh] Because I just wanted to close the loop on, their argument is fair use, and they actually have a decent fair use argument based on precedent, because Google digitized like, all of the books that it could find at one point for its Google Books project, and they got sued, and the court found that was fair use. And so there’s a lot of parallels to be drawn that are like, what’s the difference? I think there are differences.
ELM: Yeah.
EGT: I don’t know that they’re going to be differences that a court is going to recognize. Or maybe even grasp. [FK laughs] I don’t know, because I just don’t…
ELM: I mean Google didn’t—
EGT: Yeah.
ELM: They didn’t OCR all those books and then create new books out of them and sell them.
EGT: Right. That seems to me to be different. But…I don’t know, I just feel like that’s, I don’t know if, I’m not confident of that nuance being grasped. That sounds really awful. I’m totally gonna get, like, shunned by the rest of the legal community after this podcast comes out. [FK and EGT laugh]
ELM: I’m so, I’m so excited that we are putting your career on the line for this. Incredible.
FK: OK, great. So, so I mean, I feel like we’re just about at the end of this conversation, and I…not because we couldn’t keep talking about it forever, but because this podcast has a length. [laughs]
ELM: It does have a length, that’s so true. [EGT laughs]
FK: And I can’t think of a better way to end it than EarlGreyTea being shunned by the legal community.
EGT: Yes.
ELM: Wow.
EGT: Very excited.
ELM: I can think of a better way. I don’t want you to get shunned.
FK: What’s the better way? [laughs]
EGT: Just the depression…
ELM: Not getting shunned!
EGT: The depression that comes whenever I talk about AI. [ELM and EGT laugh] This is the latest depressing, depressing conclusion.
FK: Whomp whomp.
ELM: OK, so, hopefully no shunning, that’s what I’m voting for. [FK laughs]
EGT: I think it’ll be, I think it’ll be OK. I said correct points of law, so I think it’ll be OK.
FK: OK, good.
ELM: That’s the most important part, and that’s what lawyers care about the most. [laughs]
EGT: [overlapping, laughing] That’s true, actually! [ELM laughs]
FK: [overlapping] Thank you for giving us some correct points of law, which we actually need, you know?
ELM: Yes.
FK: When we were preparing for this I was saying, you know, I think that we’ve talked about copyright before, but we were just talking about copyright, so probably EarlGreyTea’s gonna do a better job. [FK and ELM laugh]
EGT: Hopefully. People are gonna be like “No, we much prefer, [all laugh] we much prefer the podcast that did not have the actual lawyer on it. That was much more comprehensible.
ELM: Wow. Wow.
EGT: Than EGT’s polemic on copyright law. [laughs]
ELM: If people have questions, they can write in; if we can’t answer them, we’re gonna ask you to answer them!
EGT: [laughs] Happy to do so.
FK: [overlapping] Hope you know that you just got a little tiny job! [laughs]
ELM: Don’t worry about it.
EGT: [laughing] So after I’m shunned by the legal community, I’m joining Fansplaining, yeah.
ELM: [overlapping] You have to answer fan questions.
FK: [overlapping] Yeah. That’s right. [all laugh]
ELM: “What is fair use?” And you’ll be like, “Oh God, I just explained it…”
EGT: [overlapping] I gotta answer it again, yeah.
FK: Thank you so much for coming on, it was great.
EGT: [overlapping] Thank you for having me. This is a delight.
ELM: [overlapping] Yeah, thank you. And thank you for the article.
EGT: Oh! No worries, thank you for letting me polemicize.
ELM: Of course. [laughs]
EGT: All right.
FK: Always a pleasure.
[Interstitial music]
FK: That was such a great conversation, and I think [laughs] the main reason is, I’m really used to like, you know, personally bloviating about copyright, and also hearing others bloviate about it with, like…
ELM: Good.
FK: High opinions, and low…you know, actual knowledge? And hearing EGT talk about it, first explaining it with clarity, and then also talking about sort of the philosophy of the law, or you know, the way that people are thinking about framing the law, and alternate ways you could think about that? From the perspective of a law professor? That was really enlightening, and there was a lot of stuff in there that I don’t hear commonly in fandom conversations, but that felt really real.
ELM: Yeah, I think that EGT is in a really unique position, and I think that’s reflected in what you’re describing. There aren’t a lot of copyright scholars who are also extremely well-known [FK laughs] fanfiction—and prolific—fanfiction writers, you know what I mean?
FK: Yeah.
ELM: And also, EGT I know has also been a writer for hire, you know, has written… to specs, like, you know, uh…adult…I don’t actually know what the [laughs] specific books! I’ve just heard bits and pieces.
FK: [overlapping, laughing] No no, it’s true, it’s true, yeah yeah.
ELM: [overlapping] And she’s talked about it on her Tumblr before. Yeah yeah yeah. You know, so she kind of has been in a bunch of these different spots, and I feel like…you know, it’s my understanding that most people, you know, in copyright conversations, on the legal side, are not writers of Fall Out Boy fanfiction. I bet, specifically that, almost none. You know?
FK: [laughs] Yeah, I know a few people who are copyright law people who write fanfic, but I do think that EGT has a real breadth of experience that is…is maybe unique.
ELM: Yeah! I mean, I’m not saying singular, but certainly it’s a perspec—you know, it’s a perspective—
FK: [overlapping] Yeah. Unusual.
ELM: [overlapping] Yeah, obviously if you encounter a lawyer in fandom it’s likely that they’re a copy—there’s a reason why they wound up in that spot, you know what I mean? Like…yeah, for sure. But I think that, amongst lawyers, I think that that’s unusual, right?
FK: Oh, yeah, yeah, absolutely.
ELM: And so that’s really interesting, because I think that that’s a balance, and kind of a spot where you’re looking, where she’s able to look at it from all sorts of sides, and I think in ways that we probably can’t because we aren’t kind of teetering on those worlds. Though I will say, this is, this is a problem that I have, every time I talk to a copyright lawyer for more than five minutes, I think, “Should I go to law school and become a copyright lawyer?” [FK laughs]
FK: Yeah, you know, I was also actually thinking about that, I was thinking about how like, there’s an alternate universe in which I went to law school and became a copyright lawyer. [both laugh]
ELM: You’re thinking, should I go and—you’re thinking about me going to law school and becoming a copyright lawyer?
FK: [overlapping] No no, I mean that—
ELM: [overlapping] It is dangerous…yeah.
FK: [overlapping] I also, I also think about this, [ELM laughs] you know? Because copyright law is really interesting and vital and relates to everything, you know? But I think I would like being a lawyer much less than I like amateurly thinking about copyright law. And I think that’s true for you too, actually. [laughs]
ELM: I don’t know if it is, this is something I, this is a dangerous flirtation I’ve had for years.
FK: [whispers] Wow!
ELM: Because my dad is a lawyer, right?
FK: Yeah.
ELM: And so he was always like…and he’d always joke, “Don’t do it, don’t punish yourself,” right, you know? And then I would like…
FK: [overlapping] But what if you did it…
ELM: [overlapping] Get really interested in some legal something, and then it’s like, “Uh oh. Uh oh!” No, I’m not gonna become a lawyer.
FK: I, now I really want you to make this career change. I just made a big career change, you too could make a giant career change.
ELM: [laughing] I don’t wanna go to law school!
FK: [overlapping] Midlife crisis. But you’d be so good at it compared to like, the 20-year-olds, you’d like, be seasoned, you know how to work, you know?
ELM: OK, that’s not the outcome here. [FK laughs] But thank you.
FK: OK. Is that the sign that we’re done talking about this and we should just go on to talk about Patreon? [laughs]
ELM: Uh, yeah, I think that’s probably for the best. If EGT ever wants to come back on, it’s like, inching me towards it, right, any copyright lawyer…you never know. You never know.
FK: Oh man, OK. Well, EGT, it’s in your hands. All right. How we keep this podcast going, we do have a sponsor for this episode, but we have—
ELM: Sponsorship! [laughs]
FK: [laughs] Yeah. [imitating Elizabeth] Sponsorship, evidently. At least once, [ELM laughs] in 211 episodes. This is the only one that has had a sponsor, so mostly the way that we do the podcast is through Patreon, Patreon.com/Fansplaining. And there you can sign up to pay as little as $1/month, as much as whatever you want a month, and you can get exciting rewards for that, such as having a Tiny Zine, having a little pin, having your name in the credits…
ELM: Having a little pin… [laughs]
FK: A little, a cute little enamel pin of our, of our logo! Um…
ELM: Just the, it’s the verb choice. Having a little pin.
FK: [simultaneous] Having. [both laugh] Um, we’re not going back, I’m too far into this now. And also we have tons and tons of special episodes, all of which you can access for the low price of $3/month. So, go and consider that, if you have the money and the inclination to do so, please.
ELM: I think that we’re gonna be doing a new special—“Tropefest” episode soon too, right?
FK: I think so. One that, that you have long longed for.
ELM: I—I’ve longed for it?
FK: Yeah.
ELM: I’ve longed for you to talk about your favorite shame trope?
FK: You have bothered me about this like, since the “Tropefest” started, Elizabeth, you want this way more than anybody.
ELM: All right. TL;DR, recently in “The Rec Center” we did an arranged marriage list, and I said to Flourish, “Your favorite trope time has come, please send me your favorite arranged marriage fic for the list.”
FK: And what I discovered is, that the only ones [ELM laughs] that I could consider reccing were ones in the fandom that shall not be named, and I really didn’t have any that I liked in any of my recent fandoms, well enough to recommend them, despite loving an arranged marriage fic. In theory.
ELM: OK, but also you were kinda saying too, you were like, “I wouldn’t, I don’t know if I want my name on this” kind of thing, right, so I feel like it’s such an…what I wanna talk to you about is like, the id-fic level of it, right, you know?
FK: Yeah, there’s definitely things that I would read that I would not recommend.
ELM: Yeah!
FK: And things that I was considering recommending but not, but like, only anonymously, and then I discovered that the only things that I was considering on that level were like, from a fandom that we no longer interact with, so. [ELM laughs] That’s right out. Yeah!
ELM: All right, so we’re gonna talk about a great trope, great trope, uh…trope that fills you with interesting levels of shame, [FK laughs] so I’m really excited to interrogate that.
FK: OK great.
ELM: Yeah! And we could also do a special episode, maybe if you actually watched a television show once in a while, we could talk about that.
FK: I watch Star Trek all the time.
ELM: Not! Star Trek! [laughs]
FK: You could watch Star Trek all the time, and then we’d have lots to do our special episodes about, Elizabeth.
ELM: There’s many, there’s many shows that are not in that one franchise.
FK: Uh huh.
ELM: All right, great. [FK laughs] Cool. OK. So, that’s Patreon, there’s a lot coming up, as you can tell, Flourish is gonna watch a television show that’s not in the Star Trek universe…
FK: You keep saying this, but I’m here to tell you…
ELM: TBD… Here’s what I propose, actually. I haven’t told you this yet, so I’m just gonna say it on the air.
FK: Oh my God.
ELM: I think we should start watching House. Rewatch House.
FK: [huge gasp] OK. That I will do. [ELM laughs] I will fully rewatch House with you, do you wanna do a House rewatch?
ELM: Yeah, I don’t—I’m like, how many seasons are there, like a hundred, I can’t.
FK: [laughs, overlapping] Not a hundred.
ELM: [overlapping] There’s gotta be at least ten seasons, right? How long did that show go on? Eight or nine? I don’t know. A lot.
FK: [overlapping] Oh yeah. You know I love to binge watch something while doing a craft.
ELM: OK. Um…yeah, look, the gifs got to me, there’s a vid I sent to you, where the, with the queerbaiting subplot, and I, I watched it like 20 times.
FK: Elizabeth Minkel.
ELM: I was like, this is exquisite.
FK: We are on, we’re going to rewatch House M.D. together. [ELM laughs] Perfection.
ELM: Dr. Wilson, we’re coming! [FK laughs] I can’t wait. [laughs]
FK: OK, OK. We’re totally off topic now, so I will just say that if you don’t have money or don’t want to give it to us, you can still support the podcast by [laughs] sending us House M.D. things to enjoy…
ELM: No!
FK: [laughing] By spreading the word, by sending in questions.
ELM: I don’t need—you’re not on Tumblr, I don’t need anyone to send it to me, it’s omnipresent, it’s everywhere!
FK: Yeah, send them to me though.
ELM: OK.
FK: Uh, so that I don’t have to get on Tumblr. [laughs] You can send in questions—
ELM: Have you heard, it’s not dying, Flourish, were you aware?
FK: You can send us questions, [ELM laughs] for instance questions you have for EarlGreyTea68; you can send us ideas for episodes, anything that you feel like, at fansplaining at gmail.com; there’s also a little box on our website at Fansplaining.com, or there is an ask box on our Tumblr, fansplaining.tumblr.com; we are also on social media generally speaking, as Fansplaining. If you are still using the site formerly known as Twitter, Elizabeth is still addicted, so, you know. Go and enjoy yourself there.
ELM: I’m not, I’m not! I barely go on there, what do you mean?
FK: You send me them like, all the time.
ELM: That’s not true.
FK: OK, admittedly, no no no, OK, you’re right. You send me Travis Kelce being charming. From like, 15 years ago, charming and stupid. [ELM laughs] You’re right, I was being unfair to you. Those are all old.
ELM: We buried the lede: we were talking with Zan, our last guest, Flourish and I, and I sent one of these Travis Kelce—the famous one about the squirrel, where he doesn’t know how to spell “squirrel”? Or “bread”?
FK: [overlapping] Yeah. And I had a feeling…I confess that I had a feeling, which was…[laughs] good for Taylor.
ELM: [overlapping] And Flourish is now gonna become a Traylor shipper. It’s already happened. It’s happening as we speak.
FK: I am, I am low information about this couple, but I have had at least one feeling, and there I am. OK. [ELM laughs] What else do we need to talk about, Elizabeth? Is there anything else?
ELM: [laughing] I think that’s it, I think we should go now, I think we’re done.
FK: OK, goodbye. [laughs]
ELM: All right, bye Flourish!
[Outro music]