Performance, Property, and the Slashing of Gender in Fan Fiction (original) (raw)

2005, The American University journal of gender, social policy & the law

Abstract

Today, it is no secret that the regime of copyright law, once an often-overlooked footnote to our legal system of property, now occupies a central position in modern debates surrounding the relationship between freedom of expression, language, and ownership. Curiously, however, while contemporary scholarship on copyright now embraces a wide range of political and economic approaches, it has often failed to consider how intellectual property law - as it is owned, constituted, created, and enforced - both benefits and disadvantages segments of the population in divergent ways. This absence is both vexing and fascinating. While issues of distributive justice have permeated almost every other area of legal scholarship, scholarship on intellectual property, while perfectly poised to grapple with these aspects, has traditionally reflected a striking lack of attention to these considerations. Indeed, far from being a value-neutral regime, the history of intellectual property law reveals an...

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References (34)

  1. See Anderson, 1989 WL 206431, at *10-11 (noting House reports and Nimmer's treatise to show that § 103 (a) was not meant to pertain to derivative works);
  2. see also 1 MELVILLE B. NIMMER & DAVID NIMMER, NIMMER ON COPYRIGHT § 3.06 (2005) (discussing the dilemma secondary authors face when they seek protection for their creative works but are classified under the law as infringers undeserving of protection).
  3. See 17 U.S.C. § 107 (2005) (detailing the four factors courts are to consider in determining whether the use made of a copyrighted work is fair use).
  4. See McCardle, supra note 77, at 451 (explaining that most fan fiction writers post their work on the Internet, allowing readers free access).
  5. See Justin Hughes, The Personality Interest of Artists and Inventors in Intellectual Property, 16 CARDOZO ARTS & ENT. L. J. 81, 85 (1998) (exploring the "personality" interests that are present in a piece of intellectual property);
  6. Hughes, Recoding, supra note 8, at 926 (comparing the benefits to non-owners when owner control is used to keep a cultural object stable to the public benefit gained when owners of private buildings maintain them properly). Other writers have explored recoding from various perspectives. See, e.g., Keith Aoki, Adrift in the Intertext: Authorship and Audience "Recoding" Rights -Comment on Robert H. Rotstein, "Beyond Metaphor: Copyright Infringement and the Fiction of the Work", 68 CHI.- KENT L. REV. 805, 826 (1993) (exploring an approach to copyright in which the "texts" are depropertized in order to give them a more "public" character). For other discussions of recoding and authorial control, see generally Keith Aoki, Surveying Law and Borders: (Intellectual) Property and Soverignty: Notes towards a Cultural Geography of Authorship, 48 STAN. L. REV. 1293 (1996);
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  12. David Lange, Recognizing the Public Domain, 44 LAW & CONTEMP. PROBS. 149, (1981);
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  14. Madhavi Sunder, Authorship and Autonomy as Rites of Exclusion: The Intellectual Propertization of Free Speech in Hurley v. Irish-American Gay, Lesbian and Bisexual Group of Boston, 49 STAN. L. REV. 143 (1996);
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  16. See Hughes, Recoding, supra note 8, at 983 (arguing that the factor that most affects whether a parody will be found to be a non-infringing fair use is whether or not the parody is pornographic).
  17. See 581 F.2d 751, 753 (9th Cir. 1978) (quoting Kevin W. Wheelright, Note, Parody, Copyrights and the First Amendment, 10 U.S.F.L. REV. 564, 571, 582 (1976)).
  18. See Wendy Gordon, Fair Use as Market Failure: A Structural and Economic Analysis of the Betamax Case and its Predecessors, 82 COLUM. L. REV. 1600, 1605 (1982) (arguing that the market value of a resource does always reflect the net social benefits that will result from the transfer). For related discussion of these points in the context of parody, see generally Robert P. Merges, Are you Making Fun of Me? Notes on Market Failure and the Parody Defense in Copyright, 21 AIPLA Q.J. 305 (1993) (discussing Campbell v. Acuff-Rose and the economic view of copyright);
  19. Richard Posner, When is Parody Fair Use?, 21 J. LEGAL STUD. 67 (1992) (arguing that copyright exemption for parodies should be very narrow);
  20. Anastasia P. Winslow, Rapping on a Revolving Door: An Economic Analysis of Parody and Campbell v. Acuff-Rose Music, 69 S. CAL. L. REV. 767 (1995-96) (analyzing the impact of Campbell v. Acuff-Rose in light of economic, fair use, and copyright theory);
  21. Alfred C. Yen, When Authors Won't Sell: Parody, Fair Use, and Efficiency in Copyright Law, 62 U. COLO. L. REV. 79 (1991) (discussing the difficulties that arise when authors are unwilling to sell their parody rights).
  22. Id.
  23. See id. at 302 (noting that often the shows' creators did not agree with the studio's actions in shutting down fan sites).
  24. See, e.g., Darren Waters, Rowling Backs Potter Fan Fiction, BBC NEWS, May 27, 2004, http://news.bbc.co.uk/1/hi/entertainment/arts/3753001.stm.
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  26. See id. at 673 (adding that Paramount ignores fan publications and only takes legal action against commercial products).
  27. See Tushnet, Legal Fictions, supra note 77, at 669 (adding that disclaimers enhance the market for official texts by producing interest in them).
  28. See id. at 680 (explaining that one of the principle purposes behind disclaimers is to ensure that fan fiction cannot compete with or be mistaken for the original).
  29. Id. at 683.
  30. McCardle, supra note 77, at 452.
  31. See Plotz, supra note 88 (adding that Lucasfilm has suppressed Star Wars slash, but allows uncontroversial fan fiction).
  32. See Michela Ecks, Fan Fiction, Novels, Copyright, and Ethics, WHOOSH!, Nov. 2001, http://www.whoosh.org/issue62/ecks2.html (explaining that the fan fiction writer claimed Bradley used her ideas in her latest Darkover novel).
  33. Paris is Burning is a documentary film about black drag queens in New York City, directed by Jennie Livingston in 1990.
  34. Executrix, The Cost of the Erection: Slash and Gayness, http://www.trickster. org/symposium/symp133.html (last visited July 26, 2006).