Our Law and Society Conference Presentation: The Intellectual Property and Political Economy of Fanworks and other forms of user-generated content

Main points

1. As media consumers become amateur media producers with an (at least perceived) economic stake in a media production, it has become more important for scholars to examine the legal and public policy implications of these fan productions and the communities that create them.

2. Communications theory that has informed most political economy/legal scholarship is based around the traditional “magic bullet” model of one-step communications flow, that a single media owner sends a message to an intended receiver who consumes the message.

3. Traditional legal models of intellectual property do not properly address a two-step model of communication and how user-generated content works in new and emerging media. (ex. What happens if Second Life went bankrupt, many people would lose much of their intellectual property, because the creations only have value in Linden dollars.)

4. Both communications studies and legal studies scholarship should expand its reception to a more interactive view of media communications, and user generated content. While fans are not “exploited” for their labor in the traditional sense of the term. Fans are freely participating in these productions; however, the economic benefit is largely one-sided.


Recently there has been considerable corporate media content owners’ backlash against “user generated content” on the Internet – content created primarily by Internet users rather than media production companies. In the past few years, social networking websites such as YouTube and My Space have made it easier for regular individuals to create and distribute their own entertainment media. A notable example of this is based in fan communities, where individuals create fan videos and other media content to share with fellow fans. As a result, media owners have retaliated by sending cease-and-desist orders to fan websites and ordering websites such as YouTube, that host such content.

By altering and policing fans’ interaction and use of media, media owners are protecting copyrights and trademarks at the expense of the fan communities that support their media products. Media owners and fan communities are involved in a symbiotic relationship — both relying on each other for their survival. In addition, media consumers are becoming more aware of the issues and consequences surrounding user generated content and ownership. As a result, it is imperative for media scholars to equally consider two now intertwined and until recently schools of media studies together (John Fiske’s cultural studies approach and McChesney’s political economy approach) with the study of intellectual property to best understand our complex relationship with media.

On the cable television program, The Colbert Report, actor Stephen Colbert plays “Stephen Colbert,” a pompous and self-important conservative pundit. Imitating conservative pundits such as Colbert deliberately attempts to foster and rally his fanbase, calling them the “Colbert Nation” repeatedly on the show.

Colbert has gone so far as to call upon the Colbert Nation to actively interact and engage with the media, by changing entries on Wikipedia based on the Colbert-created terms of truthiness (belief in something determined by emotion, devoid of evidence or fact) and wikiality (truth by consensus). Colbert told his audience to change Wikipedia’s elephants page to add the untrue statement that the number of elephants has tripled in the last six months, leading to multiple Wikipedia sites being changed within hours of the show’s airing.

Colbert showed a video of himself fighting with a lightsaber in front of a green screen and then challenged amateur filmmakers to edit and add to it, later showing their results on his show, including the second place finisher of the Green Screen challenge, George Lucas, creator of Star Wars (and the lightsaber). Based on the success of the first competition, Colbert launched a second Green Screen challenge.

However, the most effective campaign launched to date by Colbert and the Colbert Nation was winning a online poll regarding naming a Hungarian bridge after Stephen Colbert, Colbert told his fans over August 2006 to vote by going to a website completely in Hungarian. On September 14, 2006, the Hungarian ambassador to the United States, András Simonyi even appeared on the Colbert Report. In spite of the fact that the real Colbert is not fluent in Hungarian or dead, essential requirements, the bridge would have been named after Colbert, due to the actions of fans.

Members of the “Colbert Nation” have posted many clips of the Colbert Report, and their own entries in the Greenscreen Challenge to YouTube. In response, YouTube and fans received takedown notices claiming the clips violate copyright sent by Viacom, the Colbert Report’s corporate owner, thereby removing an unknown number of clips. Fans were outraged – and even “Colbert” said “I was pretty worried about the removal of our clips; I was worried that it was going to hurt you, the heroes.”

In a similar example, after the Firefly television show was canceled, to promote the sequel movie, Serenity, the corporate owners courted fans to promote the venture, leading fans to create websites and merchandise expressing their support – then turned their backs abruptly on fans. After the television show Firefly was cancelled, its fans rallied to support efforts by its creator, Joss Whedon, to turn the show into a movie, Serenity. According to Henry Jenkins, the Firefly/Serenity fanbase is extraordinarily strong – “it had one of the most committed fan bases in media history and they would have followed Whedon anywhere.”). (For a timeline for Firefly/Serenity see here.)

Universal, the corporate owner, used viral marketing techniques to market the television DVD and movie release, “consolidat[ing] and mobiliz[ing] … [the] relatively large cult following existing relatively untapped across several fan sites, according to Affinitive, the word-of-mouth marketers hired by Universal. Affinitive states that “Universal was able to create a community around the release of Serenity that harnessed the power of a large member base that exceeded the most optimistic of expectations” – primarily through a website and messageboard (now dead – was at http://browncoats.serenitymovie.org/)

Fans, acting as fans often do, had created websites, and fanworks – including fanart and merchandise, but in this case, these efforts were not tacitly accepted, their efforts were directly encouraged by the corporate owners. Fans “were encouraged to form regional groups to promote the film and perform activities that would help generate word of mouth, like creating bumper stickers and gift cards to accompany the DVD release.”

After creating the grassroots/ viral campaign around Serenity with official approval, fans were sent cease and desist letters claiming they have violated corporate copyrights and trademarks.

One of the fans receiving a letter, 11th hour, was faced with threats to close down her site and pay an $8,500 retroactive licensing fee within 72 hours, subsequently pulled. Finding the requirement from the cease and desist letter that she “permanently cease and desist from the advertising, promoting, marketing, sale or distribution of any products bearing or referring to Universal Property’” ironic, she says that

“Guess that could be seen as Universal telling me to stop guerilla marketing too. Good job Universal, can’t be having a loose cannon [sic] like me running around promoting Serenity. Think of the damage that could do.”

In response, many Browncoats [Firefly/Serenity fans] got to thinking about just how many hours they spent on helping to market and promote Serenity, in essence with the tacit agreement of Universal Pictures, if not their outright official encouragement and created an invoice response for “Billable Fan-hours: 28,030” with an “Amount Due: $2,102,250.”

The creators of the invoice see this as a “way to make both the specific point about Browncoat marketing for Serenity and the more general point about the relationship between producers of entertainment and their increasing (and knowing) reliance in the 21st century on fanbases to help promote that entertainment.”

Another open letter to Universal stated “When Serenity was being marketed there was constant encouragement from Universal for innovative viral marketing by fans, and that sort of interactivity drove us to new heights of resourcefulness and dedication. … We understand your position, we really do. But it appears obvious that you don’t understand us, and that makes a difference. A large part of why this property and its licenses remain valuable is due to the efforts of the fans. Just talk to us. We’ll listen. You don’t have to yell.”

In response to Universal’s actions, Firefly/Serenity fans have not stopped being part of the fandom – but they are finding more unique ways to market their items or have stopped selling their fan-made items entirely.

However, the Universal/Firefly/Serenity situation is far from the only example of a corporate owner sending mixed signals to fans recently. According to Molly Chase, Executive Producer of New Media Department, Cartoon Network, though her department decided to place information on YouTube to help fans create their own commercials, the legal department sent out cease and desist letters. In an important moment of honesty, Chase said, “Putting the content out there consciously is something we want to do, but we have to communicate that very well internally.” If corporations can’t even figure out what their position is on fan use, why should fans or the public be the ones that pay?

As mass media rapidly becomes more democratic, the role of consumer and producer are rapidly conflating and the issues that once were the sole concern of media professionals have now become the issue of non-professional media creators as well.

While communications theories of political economy and cultural studies both tend to lean toward the one-way model of communication theory, with media corporations as primary producers of media. Therefore, it becomes imperative to study the cultural and well as the public policy implications of this new hybrid of consumer and fan.

Media professionals? The future is not you.

OMG Shawn Gold: are you single?

I’m kidding. Kinda. But I am still extremely jealous of everyone who got to attend the Mediabistro Circus and to hear this little gem from the former MySpace exec:

When it comes to the old model of disseminating media in a one-way stream, “There’s some Uncle Milty shit going down right there.”

Classic television reference! Hot! What I would not give to drop that in a meeting sometime. You see, even though my job description says I work with social media, there are times where I am personally frustrated by the general lack of understanding about how the process of how social media works. Social media is dependent upon multi-directional communication, that your audience gives back more than just personal data or content to exploit, but that they are engaged enough to help build the content and community that will bring them back.

Professional communicators are not used to this. Journalists are used to telling their stories, informing the public and filtering any direct response through a letter to the editor or ombudsman (if they work at a place lucky enough to have them.) Professional marketers are used to sending out a message and measuring the success of that message through sales.

But that’s not the end game of social media. Social media forces professional communicators to reconsider the way we do our jobs, the success of social media is dependent upon some level of audience trust; trust that they are engaged enough, loyal enough, interested enough to participate. And that requires transparency, the willingness to expect public feedback and criticism, to communicate honestly to your audience, to admit faults and lack of omniscience. To put content out there and trust the fact that you won’t have complete control over how/where/when/why it’s consumed or used.

That goes against what most professional communicators have been trained for.

In the past few years I have worked for/with a number of companies/organizations that have expressed an interest in using social media for marketing purposes.

I have yet to work at a place that does it well.

This is primarily because of lack of trust, and a general lack of understanding about the multidirectional communication that is the bedrock of social media’s success. It’s not just communications professionals though, some of the hard-core IT/Web geeks I know aren’t necessarily plugged into social networking on a contextual level.

I don’t think we will see traditional communications organizations truly adapt to social media and use it to the best of its potential until current media professionals retire.

Gold really breaks down why:

“The Internet generation has grown up sharing their lives,” he said. “They’re aware of privacy, they’re aware that anything they say can be used against them, but they somehow don’t mind. Their lives are more scheduled and structured than ever before,” making them the model for using social media to connect more, quicker, and better than older generations. “They’re so limited in time, social media lets them efficiently connect.”

Hello, Ambassador Kitty: Hello Kitty, Japanese official ambassador for tourism

Following the appointment of Doraemon as the Japanese official ambassador for anime, Hello Kitty has been appointed the Japanese official ambassador for tourism to China and Hong Kong by the Japanese Minister of Land, Infrastructure, Transport and Tourism, Tetsuzo Fuyushiba. Her duties include blogging — but likely not policing counterfeit goods.

The idea of fictional characters as official cultural envoys seems like a joke to some; this Mirror article jokingly suggests “Bob the Builder … as Secretary of State for Business, Enterprise and Regulatory Reform” in the UK.

So what does Sanrio get out of this new role for its cute overload intellectual property? One of the oddly interesting elements about Hello Kitty is that there isn’t a starting product; she is a brand of kitty cuteness, the epitome of kawaii. Sanrio has recently tried to branch out from its traditional fan / consumer base by having a super-expensive line of jewelery, launching the beta of the Hello Kitty Online MMORPG, and starting a Hello Kitty clothes line for men in Japan (they are super cute — and while they are for dudes, pink abounds).

When your product is already a worldwide ambassador for conspicuous cuteness consumerism, making it official and government-approved seems like a great idea.

While the AP story wonders how often Hello Kitty visits Japan from her official bio home in London, inquiring minds want to know what Mimi thinks about all of this.

“Passionate fandom” applies only to generally male-dominated fandom? Or, why is slash squicky, yet “mylar bag” fandom not?

As part of a discussion of viral marketing on Cinema Blend, an unwarranted swipe was made towards (generally) female experiences of fandom, while praising (generally) male experiences of fandom:

“passionate fandom,” [is] something that happens when people get together to geek out about what they love, whether it be at conventions or through computer screens. Passionate fandom can be a great thing, after all, without passionate fandom, we wouldn’t have a real Klingon alphabet (complete with a translated version of Shakespeare’s Hamlet) or a Serenity movie, or a second season of Jericho. … those are fantastic examples of what fandom can do. Unfortunately passionate fandom also gives us Aliens vs. Predator: Requiem, Harry Potter fanfic, and pornographic images of Legolas and Aragorn captured in an intimate embrace. Passionate fandom has its ugly downside just as much as it has its good side, and we can’t blame that on viral marketing.

“Geeking out about what you love” can take many forms, so why create huge negative gender-based generalizations? Leaving aside AVPR (which no fan should be blamed for!), the above stated negative aspects of fandom, Harry Potter and Lord of the Rings fanworks, including slash, are types of fandom belonging primarily that of girls and women. I have always been puzzled by the way many male fans choose to insult female experiences of fandom as a way of validating their own experience of fandom.

Why is the stereotype of the fan as the obsessive collector-type, like Comic Book Guy from the Simpsons someone to be venerated as a positive example of “passionate fandom”? Yet female fans who focus on relationships as part of their fandom are viewed as not somehow not being true (or proper) fans. This doesn’t mean that all fanworks are good (they are so not), but I wouldn’t view that as an “ugly downside.” Or at least no more so than playing D&D post-college. (just joking).

The article does mention the creation of the Klingon alphabet as a positive aspect of passionate fandom, but misses out on the even larger aspect of passionate fandom of Star Trek — that male and female passionate fans kept Star Trek alive between the end of the TV show and the first movie. And therefore pre-viral marketing and the internet, created a community that brought something back from near commercial extinction. While some male fans might want to put their hands in their ears, part of what kept Star Trek alive while official works weren’t being made was female fan production, including vidding and fanfic (including slash). After all, “slash” was named after the fic based on the relationship between Kirk and Spock (discussed by Henry Jenkins here and here and shown in the clip above).

For more about fandom and gender check out discussions here, here, and here.

“Social Networks and the Good Society” presented at Northwestern University by Cass Sunstein, Siva Vaidhyanathan, and Eszter Hargittai

I attended a very interesting lecture “Social Networks and the Good Society” presented at Northwestern University by Cass Sunstein, Siva Vaidhyanathan, and Eszter Hargittai. While I planned on liveblogging, I brought only a notepad. (grr!) Since my notes don’t include many direct quotes, but instead I summarize, all errors in my lecture notes are my own, and the bracketed materials are my comments. If you want an actual news report, here is an article from the Daily Northwestern.

My notes:

In her introductions, Eszter Hargittai asks how well known does someone need to be before you don’t have give their bio or be linked? [This issue is also mentioned in her post about this event on Crooked Timber]

Cass Sunstein [for a published version of these ideas in Cass Sunstein’s own words, read this Chronicle of Higher Education article]:

He is concerned about extremism on social networks. MIT Media Lab founder Nicholas Negroponte created the term “daily me,” a utopian vision of receiving communications based on one’s own interests. More recently, in the Long Tail, Chris Anderson writes about a new niche society. This is also what social networks do.

Are these social networks dangerous or based around serendipity? Empirical studies [detailed in the Chronicle story] show how social networks help people switch their opinions to greater extremes, whether they are discussing political viewpoints, potential jurors, or judges on U.S. Court of Appeals in three judge panels. These three empirical studies show groups polarization due to the impact of a social network. Groups that have a starting viewpoint will move more towards that viewpoint.

People want to be different, but to the right degree — in the right direction. This causes group polarization. Also, some arguments have a built-in rhetorical advantage (regardless of actual facts, it is much easier to imagine reasons to give a large jury verdict than it is to imagine reasons to give low jury verdicts).

Whether in person or online, social networks can promote problems of errors and mutual incomprehension. Alternatively, the value of enclave deliberation benefits individuals and the group, allowing for diversity of viewpoints. He fears that social networks don’t allow for bubbling up of information — once the group has a set viewpoint, it is difficult to challenge.

Siva Vaidhyanathan:

During the Napster era, repeated often was the phrase, “kids today don’t care about copyright.” However, there wasn’t really a change in how people behaved; instead there was an amplification.

Now he is interested in privacy and personal information, like the information held by Amazon, MySpace, Facebook, Ebay, and his new project on Google. And now what is being said is that “kids today don’t care about privacy.”

People use social networking online as management tools; privacy is not really what the focus is for users. Instead, people are trying to hit the marketing of “self” for the right market, for the right audience at the right time. Different people or networks know different things about different people.

Kids may not manage their information as well as they will when they are older. He hates how kids are called “born digital.” Terminology based on generation is imprecise , when we envoke generations be are being sloppy — similar to astrology. Focusing on generations puts increased emphasis on those with weath, means, and access, focusing on those who are consumers of stuff. However, it excludes those not in the U.S., and even for those in the U.S., immigrants and those who cannot buy all the stuff.

He mentions Eszter Hargittai’s study on the digital divide [study here: Digital Inequality: From Unequal Access to Differentiated Use], that the digital experience of kids varies greatly. Most students tell him that they use social networks for their usefullness. Students enter college with a variety of life experiences and not everyone likes using the latest thing (or can). Kids are still interested in reading books when there is a payoff; students just don’t like the cost of books.

He then cites to Henry Jenkins’ thoughts about “digital natives” [quoting the quotes from the blog post]:

talk of “digital natives” may also mask the different degrees access to and comfort with emerging technologies experienced by different youth. Talk of digital natives may make it harder for us to pay attention to the digital divide in terms of who has access to different technical platforms and the participation gap in terms of who has access to certain skills and competencies or for that matter, certain cultural experiences and social identities. Talking about youth as digital natives implies that there is a world which these young people all share and a body of knowledge they have all mastered, rather than seeing the online world as unfamiliar and uncertain for all of us.

…Talking about digital natives and digital immigrants tends to exagerate the gaps between adults, seen as fumbling and hopelessly out of touch, and youth, seen as masterful. It invites us to see contemporary youth as feral, cut off from all adult influences, inhabiting a world where adults sound like the parents in the old Peanuts cartoons — whah, whah, whah, whah — rather than having anything meaningful to say to their offspring. In the process, it disempowers adults, encouraging them to feel helpless, and thus justifying their decision not to know and not to care what happens to young people as they move into the on-line world.

He then says that the conversation continued with comments from Leslie Johnson:

I often take part in discussions about services for faculty and students, and sometimes hear ageist comments about how older faculty are completely non-digital and all students are automatically all digital. Hah! Just like some folks have an interest or skill in languages or math or art and some folks don’t, it’s the same with whatever “digital” is.

[Then there was more about the back and forth conversation on blogs about “digital natives”, including input from Print is Dead author, Jeff Gomez, but it seems ridiculous to include my notes when you can just read the conversation of the quoted blog posts yourself here. I would have linked to Gomez’s blog directly but the archives are down — I guess at this point I could make an overarching statement about generation blog archive.]

Thinking about digital natives has serious policy implications, such as for universities. This term limits us to design systems that might not fit the needs of all, by requiring one-size-fits-all ways of thinking. Google Books is not focused on the need for quality and stability; instead the project is interested in putting things out there. He quotes John Wilkin of University of Michigan libraries, as saying that kids today are only interested in looking at digital books — and we should move in that direction. [I didn’t find a quote saying exactly that but Wilkin is a strong booster of Google Books.]

Educators are guides to learning and research, and should not pander to what is easiest. Only the needs of privileged are being considered, similar to pop culture, the focus is on those that are white and rich.

He says that Danah Boyd says what really matters is that digital platforms meet some needs and desires but not all. [I must have written down the quote incorrectly, but you can read what she thinks here.]. Social networking only amplifies what was already present in the real word (such as stalking). These are human problems, while they can be amplified online, they aren’t new.

The first fish that was on land wasn’t called part of “generation land,” but there was a great deal of change over time, gradually moving. Our everyday ways of engaging in social interaction haven’t changed.

Fandom mentions: Cass Sunstein loves Lost and Lostpedia, Siva Vaidhyanathan is a Yankees fan.

Happy Birthday Belongs To You and Me?: A possible copyfraud in action?

There is no better example of the political economy of the present copyright system than a recent detailed analysis of the very-likely public domain status of Happy Birthday. If not copyrighted, than why the copyright claim?

Because it is

a revenue-generating juggernaut, producing more than $2-million a year in fees for Warner Music and the offspring of Mildred and Patty Hill, the sisters who composed [the original lyrics] in 1893

The article by Robert Brauneis analyzing the copyright status of Happy Birthday isn’t just interesting to intellectual property scholars, but has been written about in the Globe and Mail, Defamer, and in a series of posts on the Volokh Conspiracy.

But the idea of copyright law being used as a sword of Damocles over the public is not new; in a New York University Law Review article, Brooklyn Law School Professor Jason Mazzone coined the term “copyfraud” to describe claims of copyright in public domain materials.

As Mazzone states,
“copyfraud’s ultimate result is to weaken legitimate intellectual property rights. … If large publishing houses with their teams of lawyers cannot distinguish between what is protected and what is free for public use, it is unreasonable to expect teen-agers with their laptops to play by the rules.”

So our present system scares people into not using public domain materials — and to pay claimants to ownership regardless of actual ownership. And yet copyright owners wonder why downloading / pirating is seen as a reasonable option for some consumers.

During the Eldred case, Lawrence Lessig argued about the inefficiency of a copyright system that locks all works up for generations so that a tiny number of works can continue to be moneymakers. A copyright system that allows for public domain works to be “copyfraud”ed is even worse, making our cultural heritage appear to not even belong to us.

Response to Who Gets to Write Fandom History?

As you describe in your post, Who Gets to Write Fandom History?, understanding how fandoms are created and evolve is complicated. I think that is even more reason to praise fandom cultural anthropologists, like Henry Jenkins, Camille Bacon-Smith, and danah boyd, who help to create fandom snapshots of limited moments in time

Figuring out what counts in fandom is a constant interaction — often with older fans schooling newer fans. Of course, there are factual matters in fandom that can be memorized (all sports fandom) and fan shorthand (little Danish friend, that one picture of Uncle Trent (pre-uncleing), cream stew) but what is more likely to be disputed are matters of opinion that can never truly be resolved (Is “The Four Horsemen” or “The Mechanix” the real version?; Were the Road Warriors the best tag team ever?; Who was the best Doctor Who ever?).

But if common knowledge is what binds fandoms together it can also cause rifts or breaks when the fan-created ideas bifurcate (Was it OK to make Greedo shoot first? — and to bring it back to Gundam Wing, are/aren’t Catherine and Trowa siblings and the OTPs are/aren’t Heero/Relena, Duo/Hilde, Quatre/Trowa).

And that is the difficulty in reporting fandom history — how is it possible to objectively report fan history when the only people that truly care are highly biased and non-objective.

In his New Yorker article, Tim Wu analogizes Vander Ark (the compiler of the Harry Potter Lexicon) to Arachne, the weaver, and J.K. Rowling to Athena, goddess inventor of weaving:

Whether Arachne was actually better we’ll never know, for Athena, in a jealous rage, destroyed her rival’s tapestry and turned her into a spider.

Not to overdo my childhood obsession with Greek mythology, but Arachne was punished not for learning how to be skillful, but like her friend Niobe, for holding herself to be better than the gods (by weaving only their sexual indiscretions noted by Ovid in possibly the first literary reference to p–n). Arachne’s work was flawless: “[Athena] could not find a fleck or flaw–even Envy can not censure perfect art.”

And this right here is but a small example of the type of fan knowledge that fans in all fandom have. Recently, a friend commented about a book chapter wondering how the author could get things so wrong — “Everyone knows X wasn’t released until Y!” And that fan knowledge working together becomes fan labor. And according to some of the Harry Potter fan community the perceived exploitation of fan labor is what the Lexicon lawsuit is about – – not traditional notions of intellectual property.

Tim Wu’s article implies that Vander Ark is the misunderstood geek, just trying to impress the cheerleaders with their arbitrary rules for who can belong. But he is really more like Jenny on Gossip Girl — don’t mess with Blair or you’ll get burned.