With the developments on Twitter last week (Alan Doyle for the first time officially recognised and retweeted @lyndahere’s bootlegged videos of some of his new music.) I began to research and think about fan labour.
Many of the fans from the fandoms I am interested in are
involved in investing their time and money in creating fan products. They include
taking photographs, making videos at concerts, creating fan webpages, blogs,
running social media fan sites and creating fan vids (for example for The Republic
of Doyle).
Fan labour is the focus of a considerable amount of academic
research. So what do those who study fandom say about fan labour? I was
particularly interested in theories around the exchange of fan labour and money and
the conflict between fan labour and copyright holders. Here are some of those
ideas about fan labour (as distinct from fan service) I found interesting in a
well referenced article from Wikipedia.
From Wikipedia
as sited 5 April 2014 (no copyright infringement intended)
Fan labor
is the productive creative activities engaged in by fans, primarily those of
various media properties or musical groups. These
activities can include creation of written works (fictional, fan fictional and
review literature), visual or computer-assisted art, music, or applied arts and
costuming.
Although fans invest significant time creating
their products, and fan-created products are "often crafted with
production values as high as any in the official culture, most fans provide their creative works as
amateurs, for others to enjoy without requiring or requesting monetary
compensation. Fans respect their gift economy culture and are often also
fearful that charging other fans for products of their creativity will somehow
fundamentally change the fan-fan relationship, as well as attract unwanted
legal attention from copyright holders. The skills that fans hone through their
fan works may be marketable, and some fans find employment through their fan
works.
In recent years, media conglomerates have become
more aware of how fan labor activities can add to and affect the effectiveness
of media product development, marketing, advertising, promotional activities,
and distribution. They seek to harness fan activities for low-cost and
effective advertisements (such as the 2007 Doritos Super Bowl Ad contest at the
same time as they continue to send out cease and desist to the creators of
amateur fan products—threatening legal action whose basis is increasingly being
questioned by fandom rights groups like the Organization for Transformative
Works which asserts the transformative and therefore legal nature of fan labor
products…
Fan Products and Money
There is a divide in fandom between those who want
to see new models of remuneration developed and those who feel that
"getting paid cuts fandom off at the knees."
If there were legitimate pathways for fans to
create products that could lead to fame and fortune (or at least a paying job),
the tradeoff between getting paid and getting ahead in the community (cultural
capital) might be enough of an incentive to encourage creative work by fans.
Fans who do their creative work out of paying
respect to the original media property or an actor or to the fandom in general
gain cultural capital in the fandom. However, those who attempt to sell their
creative products will be shunned by other fans, and subject to possible legal
action. Fans often classify other fans trying to sell their items for profit
motives as “hucksters” rather than true fans.
Fans are often also fearful that charging other
fans for products of their creativity, such as zines, videos, costumes, art,
etc. will somehow fundamentally change the fan-fan relationship, as well as
attract unwanted legal attention from copyright holders. That fear has come
true in more than one case, such as the removal from sale on Amazon of a
commercial fan fiction book set in the Star
Wars universe.
However, some fans engage in for-profit exchange of
their creations in what is known as the gray market. The gray market operates
mainly through word of mouth and “under the table” sales, and provides products
of varying quality. Even though these are commercial activities, it is still
expected that fan vendors will not make a large amount of profit, charging just
enough to cover expenses. Some vendors attempt to not mark up their products at
all, and will use that information in their promotional information, in an
attempt to secure the confidence of other fans who may look down at fans making
a profit.
Fan
art exceptional in that artists have traditionally
sold their works in public at conventions and other fan gatherings as well as on their own web sites. Many
fan artists have set up e-commerce storefronts through vendors which allow
customers to purchase items such as t-shirts, totes, and mugs with the fan
design imprinted on them…
Fan works develop the skills of the artists, and
fan works enable women to develop skills in encouraging environments that are
traditionally male-dominated (such as website design or server maintenance).
Only some fans, however, primarily in the computer game industries, find
employment through their fan works.
Some companies purchase fan-created additions or
game items. Other companies run marketplaces for fans to sell these items to other
fans for monetary reward….
Legal issues
Most fan labor products are
derivative works, in that they are creative additions or modifications to an
existing copyrighted work or they are original creations which are inspired by
a specific copyrighted work. Some or all of these works may fall into the legal
category of transformative work (such as a parody of the original), which is
protected as fair use under U.S. copyright law. However, corporations continue
to ask fans to stop engaging with their products in creative ways.
Support for fans
Fan labor products may be
protected by the Fair Use Doctrine of the U.S. Copyright Law, which judges if a work is copyright-infringing
based on four tests:
·
the purpose
and character of the use, including whether such use is of a commercial nature
or is for nonprofit educational purposes;
·
the nature
of the copyrighted work;
·
the amount
and substantiality of the portion used in relation to the copyrighted work as a
whole; and
·
the effect
of the use upon the potential market for or value of the copyrighted work.
However, these tests are not
absolute, and judges may decide to weigh one factor more heavily than another
in any given case.
Although some fan artists
receive cease & desist letters or find themselves running afoul of
copyright law, they may argue that their “artistic interpretation” of a
character or scenario makes it a transformative work upheld by the fair use doctrine.
The Organization for Transformative
Works is a fan-run organization
that advocates for the transformative nature of fan fiction and provides legal
advice for fan fiction writers, vidders, and other fan labor practitioners.
Chilling
Effects is a joint web project of the
Electronic Frontier Foundation and Harvard, Stanford, Berkeley, University of
San Francisco, University of Maine, George Washington School of Law, and Santa
Clara University School of Law clinics, which covers the current state of
copyright-related law suits, and has a special section devoted to fan fiction
legal action and how to fight it.
Copyright holders fight fans
Recent years have seen
increasing legal action from media conglomerates, who are actively protecting
their intellectual property rights. Because of new technologies that make
media easier to distribute and modify, fan labor activities are coming under
greater scrutiny. Some fans are finding themselves the subjects of lawsuits or
cease & desist letters which ask them to take down the offending materials
from a website, or stop distributing or selling an item which the corporation
believes violates their copyright. As a result of these actions by media
companies, some conventions now ban fan art entirely from their art shows, even
if not offered for sale, and third party vendors may remove offending designs
from their websites.
