Internet Fandom Is Killing Media - And It's Illegal

Internet Fandom Is Killing Media - And It's Illegal

Copyright law assigns a large handful of rights to copyright owners without putting much thought into it. The entire system is designed to make established rightsholders' lives easier when "protecting" their work. Unfortunately, literally any of the actions that we would attribute to fandom are explicitly reserved exclusive rights of the copyright holder unless otherwise assigned or waived. The only legal thing one can do within fandom is to consume.

Fandom could be defined as the point at which a person ceases to engage with a work purely as a form of entertainment and begins to engage with it as a factor of their personal identity. Someone who particularly resonates with a particular work or genre will surround themselves with like-minded individuals and form in-group behaviors to distinguish themselves from the out-group. This is not a new process, but the Internet has dramatically accellerated the rate at which fandoms are created and grow to the point where it's getting obnoxious.

Unfortunately, the thing that happens with people's personal sense of identity is that they attempt to imbue it into their own creative work. And when they have incorporated copyrighted work into their own identity, they will inevitably create their own derivative work based on that work and how they interpret it. The sad part is, for the most part, such things are copyright infringement.

But what about fair use, you say? Well, unfortunately, that concept is a bit of a dud. It is designed to cover situations where copyright law applied firmly would infringe on other people's right to speak. However, as defined in the law, most examples of fanworks cannot qualify. Going through the tests that US law uses to determine what is and isn't fair use, we would see that some conditions would help and some would hurt.

Fair Use is not a hard-and-fast doctrine; it's designed specifically to allow courts and judges to write tiny exceptions into copyright law rather than punish an otherwise infringing use. The way that the current law is written requres these kinds of rulings to conform to a four-step test. None of these must pass, but for a fair use to pass the sniff test we want as many as possible to pass and make sense.

The first condition would be the purpose and character of the use. Now, this is sometimes misunderstood as being about the commercial nature of the use. Unfortunately this isn't the case; copyright law generally does not recognize a concept of "noncommercial use". Generally, it's infringement, and then commercial damages are added on if that could be proved. This condition is really more about what you did with the work rather than how much you're making from it.

The second condition, the nature of the copyrighted work, won't apply here. Fictional works are entitled to more copyright protection than non-fictional works, or works made up of fact. We will not prevail on this condition alone.

The third condition, the amount and substantiality of the work, also works against us. Fandom does not use a little bit of the work but entire facets of it. We cannot argue that we are only taking bits and pieces here.

Finally, the fourth condition, the effect upon the value of the work, is the thing that kills fair use for fanworks. Quite simply, courts must consider how an unlicensed, infringing fanwork might harm the market for licensed goods. We lose this condition simply on the fact that so many franchises rely on licensing revenue and derivative works to make a profit. In fact, many series, especially animation designed for the adult Japanese market, is produced as a loss-leader for licensed character goods and/or sequels.

For a judge to rule a fanwork as fair use, it requires the work in question to prevail entirely on the merits of that first claim: the nature of the use. Unfortunately, very little of what fans would consider essential to their fandom is going to succeed there. Not much fanworks rise above the nature of existing licensed derivative works to become their own thing that a court would recognize as worthy of protection.

So, if fandom is illegal, why does it still exist? Well, in the US at least, fighting against it has largely been considered bad form. The crown jewel of marketing is to embed your product into people's identity. Look at the console wars; Sony and Microsoft have brainwashed every 12-year-old in America into thinking that their choice of identical black box is better than the other competing but identical black box. (Being a "PC Gamer" is also an identity.) Suing your own fans for being fans is such a bad PR move that even the RIAA stopped doing it.

Copyright affords the owner of a work the ability to specify, by fiat, the rules by which fandom take place. If they feel like some aspect of fandom is harmful, then the copyright owner may use the law to stop that fandom. A good example of this is Nintendo - they clearly do want social media to share fanworks based on their content, but only certain kinds. Fanart is OK, elaborate fan theories also OK, but tool-assisted speedruns of 20 year old games just have to go. In reality all three exist only by Nintendo's good graces, but it's the latter that they prohibit because it involves playing their games on unauthorized hardware.

So now I need to address the recent #WTFU hashtag, short for "Where's The Fair Use". The reality is that a large portion of what is considered fair use on the Internet isn't. The only reason why you even got to see these kinds of videos in the first place is because YouTube relies on independent creators with no legal department to provide content for them. The reason why they get away with it is because of the DMCA safe harbor provision which lets them ignore the grey zone in the same way that copyright holders do.

But the plain and simple truth is that copyright law's most messed up feature is that you can own someone else's identity. And that's not cool.