Using social norms to regulate fan fiction and remix culture.

• Jurisdiction: United States
• Author: Hetcher, Steven A.
• Date: 01 June 2009

INTRODUCTION I. THREE NORMS THAT REGULATE FAN FICTION AND REMIX CULTURE A. The Norm of Socially Acceptable and Somewhat- Encouraged Amateur Remix B. The Norm Against Commercializing Fan Fiction C. Competing Norms Among Owners Regarding Tolerance of Noncommercial Use II. REGULATORY OPTIONS IN A WORLD OF SHIFTING NORMS III. LESSIG'S VISION OF AMERICA: MILLIONS OF KIDS IN ORANGE JUMPSUITS IV. MUCH FAN FICTION AND REMIX ARE FAIR USE V. NORMS AS GENERATORS OF COSTS TO COMMERCIAL OWNERS CONCLUSION INTRODUCTION

Fan fiction and remix culture have been and are continuing to explode both in terms of social relevance and sheer quantity of new works produced and available. (1) Fan fiction is simply that: fiction created by fans, typically of popular commercial works, such as the Harry Potter book and film series. Rebecca Tushnet's path-setting article defines fan fiction as follows: "'Fan Fiction,' broadly speaking, is any kind of written creativity that is based on an identifiable segment of popular culture, such as a television show, and is not produced as 'professional' writing." (2)

Suntrust Bank v. Houghton Mifflin Co. could be called the first fanfiction case, but Alice Randall, the author of the parody at issue in Suntrust, is better described as an antifan of Gone with the Wind. (3) The case turned on a defense of criticism and parody, not specifically on the fanlike nature of the work. (4) However, if Randall's book counts as fan fiction, then it is not the case that there is no settled fan-fiction case law, a claim that sometimes has been made. (5)

As technology has advanced, fan fiction has evolved into "fanworks" or, alternatively, "fanvids." (6) A related but more general term is "remix." The term "remix" avoids the suggestion that the new works are produced by fans of the underlying works. Lawrence Lessig gives examples of remix works that are highly critical of the works drawn upon in the remix. (7) Lessig does not define the term "remix" in his new book, despite its title. He does, however, note that remix works are "transformative." (8) He also equates remix with literary quotation. (9) There is a tension here, however, as a work is not necessarily transformed simply by adding a quotation from another work. (10) Additionally, there is ambiguity because Lessig is not explicit as to whether he intends to use the term "transformative" in its legal sense, namely, in reference to factor one of the fair use test. (11) The question is pertinent as there is a movement to develop the concept of transformative use that appears not to limit itself to the legal sense of this word. (12) The definitional expansion of the term "transformative use" beyond its legal origins would complement Lessig's larger agenda, which includes bypassing fair use altogether when it comes to the legal treatment of amateur remix. (13)

Broadly, then, remix works are created by taking digital snippets from various sources and combining them to create a new work. (14) A nondigital precursor in the visual arts, collage, traces back to the beginning of modern art with the works of Braque and Picasso in the early years of the Twentieth Century. (15) A term roughly synonymous with remix frequently used in a musical context is "mashup," which "[t]ypically consist[s] of a vocal track from one song digitally superimposed on the instrumental track of another." (16) Another roughly synonymous term is "appropriation art." The best-known contemporary appropriation artist--especially to copyright scholars--is Jeff Koons. (17)

Remix is legally interesting. Infringement is a central issue because much remix contains varying amounts of unauthorized copyright-protected material. There is a strong argument, however, that much of this remix is fair use and hence legal. Because the trend toward remix is substantially technology driven, it is likely to continue, if not to accelerate, unless the law somehow puts the brakes on the process. Both the potential for explosive new growth and the potential for its curtailment make the task of determining how best to regulate these important new kinds of creative works urgent. The remainder of this Article will develop such an account.

Below, I will first develop a positive account, which will make clear the important role that social norms have played in the de facto regulation of fan-fiction and remix works up to this point. I use the term "de facto" as a term of art to embrace regulation both by formal legal means and by informal social norms. (18) Understanding this story is as important as it is instructive in terms of demonstrating possible alternatives to regulation. This account, of course, says nothing about the normative desirability of the current role played by social norms. Since social norms have sometimes served as regulators in the absence or ineffectiveness of formal law, only to be replaced at some later time by more formal forms of regulation, it is especially pertinent to ask whether such informal regulatory means may be better formalized.

In general, recent norms theory serves to correct earlier optimism about the power of norms to regulate judiciously as a result of their emergence from bottom-up social forces that democratically take into account the desires and preferences of everyday members of society. (19) This romantic conception has been replaced by a contemporary one under which social norms are better understood as potentially subject to their own distorting influences. Therefore, like formal law, each social norm must be normatively justified on its own merits instead of its pedigree. (20) This said, it is also true that recent norms theory has shown that social norms are often the most effective means of regulation. When the discussion below turns to policy alternatives, I will not only defend the desirability of the role currently played by norms in regulating fan-fiction and remix works but will also argue that norms offer the potential to play an even more valuable and significant role.

It will be helpful to begin by looking in greater detail at the main social norms that play a regulatory role. To a certain extent, the norms discussed in the next Part emerged under a somewhat different set of conditions than exist today or are likely to exist in the future, as technological advances make it easier for fanworks and remix to draw much more comprehensively from underlying sources. These advances may dramatically increase the amount and source variety of remix while simultaneously reducing the role that communities have played in the fan-fiction world. Thus, one of the important questions that we will need to keep in mind is whether norms can continue to play the important role that they have played in past regulation of fan fiction. Once we see how the relevant norms function, we will be in a better position to appreciate how norms working with the fair use doctrine and the Digital Millennium Copyright Act (DMCA) (21) together provide a regulatory environment in which remix can continue to flourish, while allowing owners to protect against those uses that they perceive as especially costly.

1. THREE NORMS THAT REGULATE FAN FICTION AND REMIX CULTURE

   The following discussion sets out three distinct social norms that play a substantial role in the overall regulation of fan fiction and remix culture. The first two of these are well established. The third is battling with its antithesis for dominance. (22) Lawyers sometimes overemphasize the role of law in the overall regulation of society; it is as if law makes rules from on high and people below are pulled by strings, like puppets buffeted about by the incentives created by law. (23) Contrary to this top-down causal view, one of the contributions of norms theory to the law has been to help foster a better appreciation of the fact that the regulatory structure of society is constructed from the bottom up as well. (24) Indeed, these forces interact in ways that causally loop. Not only do norms regulate human activities in an informal, nonlegal manner, but norms and law influence one another and work in tandem to regulate behavior. (25) In the absence of law, or of effective law, norms will tend to fill in the void. (26) This has been poignantly evidenced by the phenomenon of file sharing. Initially, the law was in dispute, with one influential element of the policy community arguing that the activity was fair use. (27) This defense was no longer colorable after Napster and was not raised in Grokster. (28) In the early days of file sharing, most people were simply unaware of the legal status of their behavior. (29) The commercial creative-content industry expended significant effort to educate people on the illegality and purported wrongfulness of file sharing, comparing it to theft. (30) Perhaps to the industry's surprise, its efforts at convincing people that their actions were equivalent to thievery have had a limited effect. Ordinary morality appears not to find the analogy compelling. (31) While the law in a typical file-sharing case is no longer in dispute, the activity continues apace, occurring millions of times per day. (32) The best explanation of this behavior, then, is not the legal status of the activity; rather it draws centrally on social norms. (33)

   It is against this background that one can best understand the current situation with fan fiction and remix culture. With file sharing, the law was clear. What stood in the way of bringing about behavior in conformity with the law were (1) that file sharers had to be educated about the law and (2) that once file sharers were educated, they remained shaped more by norms permitting such behavior than by norms proffered by the music industry proscribing it. With fan fiction and remix, the law is more uncertain and nuanced. Of most dramatic significance is the fact that while file sharing typically is not fair use, typical amateur fan fiction and remix are, or so I will...