Presenter Abstracts

Panel I:  Is There a Text in This Work?  Transformation Beyond the Written Word

Casey Fiesler, Vanderbilt University Law School
Paper Dolls: Role Playing, Gender, and Pretending Without a License

The pervasive stereotype of a role player has remained much the same despite changes in medium: whether in the context of Dungeons & Dragons or World of Warcraft, the image that usually comes to mind is that of a male gamer.  However, not only does this stereotype fail to account for the rising numbers of female gamers, but also for the other types of role-playing games that attract a predominantly female player base.  Many of these games have their roots in fan culture—for example, play-by-post and play-by-email role-playing games that are largely collaborative writing projects, distinctive from fan fiction only in their scope and social aspects.  Whether she is writing a blog from the point-of-view of Faith from Buffy the Vampire Slayer or dressing her avatar as a Hogwarts student and exploring the vast Harry Potter-modeled castle in the virtual world of Second Life, the female gamer often favors character immersion in pre-existing worlds.  Even in the predominantly male world of MMORPGs, she might develop back story for her character and integrate it into the game’s pre-determined storyline.  However, because of the playing style female gamers tend to favor and the intersection of many of these role-playing games with fan culture, copyright issues are more likely to arise.  Should the female fan who as a child acted out stories with paper dolls face consequences for copyright or trademark infringement when as an adult she is still “pretending,” even if online?  For many of the same reasons given in regards to fan fiction, role playing with copyrighted characters should be considered fair use as long as it remains analogous to offline “pretending”—for non-commercial, entertainment purposes—lest we create yet another division in perceived legitimacy between male and female hobbies.

Melissa Tatum, University of Arizona Rogers College of Law and Robert Spoo, University of Tulsa
Does Gender Influence Attitudes Toward Copyright in the Filk Community?

Over the past 20 years, the filk community has expanded from a small group of science fiction convention-goers who occupied unused convention rooms during the late night hours to a community large enough to organize several dedicated filk conventions each year, a Hall of Fame, and an annual awards ceremony.   While many filk songs are original lyrics set to original music, many more filk songs consist of lyrics written to existing music and/or lyrics based on characters/worlds created by other people. These practices create potential problems in light of existing intellectual property law.  In this paper, we seek to discover whether gender influences a filker’s view of intellectual property law. As part of our research we will build and analyze two databases. The first will consist of filk songs nominated for a Pegasus Award, the major filk award for the past twenty years; songs published in Xenofilkia, a filk magazine published for the past twenty years; and songs specifically mentioned in the Filk Hall of Fame induction citations. The database, which should contain approximately 700 songs when complete, will identify whether the lyrics and/or the melody for each song uses copyrighted material. The second database will consist of the responses to a survey questionnaire administered to members of the filk community. We anticipate that this data will reveal information about the approximate percentage of male and female filkers; objective criteria correlating gender to types of songs written, performed, and/or recorded; and subjective criteria about the correlation between gender and consideration of intellectual property issues.  This project seeks to generate “gendered” data and tentative conclusions about gender, creative productivity, and attitudes toward intellectual property - an area in which “[l]ittle data . . . is currently available,” as noted by Professor Ann Bartow in her article, Fair Use and the Fairer Sex: Gender, Feminism, and Copyright Law, 14 Am. U. J. Gender & L. 551, 561 (2006).   The (admittedly very preliminary) data gathered so far suggests significant misunderstandings regarding the boundaries of parody and fair use, although it is far too early to begin drawing any definitive conclusions about whether and to what extent these views and attitudes are gender-based.

Tisha Turk, University of Minnesota, Morris,
Transformative Narrations: Fan-made Videos and Fair Use

If the Librarian of Congress grants the Electronic Frontier Foundation’s recent request that DVDs ripped for the purpose of making remix videos be exempted from the prohibition on circumvention of access control technologies, we may soon see legal tests of the fair use doctrine as it relates to such videos. Many of the familiar (and male-dominated) genres of such videos, such as movie trailer remixes, fall into the well-tested fair use exemption category of parody.  These types of remixes, however, are not the only genres out there. Within the predominantly female community of remix artists known as vidders, media fans edit clips from television shows or movies and combine those clips with music to critique or interpret the original source. Many of these videos, known as vids, therefore qualify for the same fair use exemptions that enable critics and educators to analyze literary texts in articles and quote them in reviews; to the extent that a vid is, as Francesca Coppa has argued, “a visual essay that stages an argument,” it can be defended on the grounds of fair use. But while many vids fall unambiguously into the protected categories of criticism or commentary, other cases are less clear-cut. Vidding has traditionally been, as Coppa notes, “a form of collaborative critical thinking,” but it has also been a form of collective celebration: vids have strong affective and emotional as well as intellectual dimensions. While such celebratory vids can certainly be seen as staging arguments, it is nevertheless useful to identify additional models for thinking about the creative and transformative nature of vids and vidding.  For one such model, we can turn to narrative theory. Because narrative theory was developed by film scholars as well as literary critics, it can be easily adapted to generate a theoretical framework for understanding how vidders transform visual texts through the process of vidding.  In my presentation, I will explain the well-established theoretical distinction between story and narration and argue that this distinction offers one useful way of understanding the transformative nature of vidding. Narrative theorists have established that narration in film is provided not by an author or character but by the camera itself—the angles, duration, and sequencing of shots—and by music; these elements of non-verbal narration are exactly what vidders alter. From this perspective, regardless of whether a vidder changes the story of a source text, she is inevitably changing its narration; she is always re-narrating, re-telling. A vid is therefore always a new narrative; it constitutes not only a rhetorical repurposing but a transformation of the most basic elements of an audiovisual text.

Panel II:   New Forms of Organizing:  Women Reinterpret the Legal, the Educational and the Political

Jordan A. Gilbertson, University of La Verne College of Law
We Will Not Be Ignored: Integrating Fan Created Works into the Traditional Copyright Classroom.

Fandom is a term used to describe a subculture of fans of a particular television program, movie, book or artist, brought together by a love and desire to celebrate that show, movie, ect. With the advent of the Internet fandom has physically manifested itself into various forms including fan fiction, fan art, fan craft, video mash-ups and charity screenings. In each of these categories fans “create” works which draw on, or occasionally use completely, the characters, settings and situations of the fandom. Such manifestations have implications in the intellectual property world.  I propose to show how works of the fandom communities can be utilized in teaching copyright and trademark law in a traditional law school curriculum. I contend that in order to fully understand and appreciate important copyright and trademark doctrines some experience identifying and classifying what is copyrightable, what is infringing and what is fair use, is necessary. Using fan-created works of fiction and art presents a unique opportunity for practical experience and moves beyond traditional black and white case law.  Future lawyers working in the intellectual property area will benefit from early exposure to these cutting edge ideas. In creating this supplemental course curriculum design I am attempting to challenge the conventional understanding of how and to whom copyright and trademark law is taught. Fandom has traditionally been associated with women, as it was created by and mainly for, the female fan. By using tools of feminist pedagogy as well as examples of fan created works (traditionally created by females) I also hope to broaden the appeal of intellectual property course to female students as well as highlight new ways of conceptualizing the idea of “intellectual property.”

Karen Hellekson, Transformative Works and Cultures
Intellectual Property, Transformation, and Academic Journals

As a founding coeditor of “Transformative Works and Cultures” (http://journal.transformativeworks.org/), a peer-reviewed academic  journal about transformative fan artworks and fan cultures affiliated  with the fan advocacy group Organization for Transformative Works, I  will discuss the choices we made regarding copyright and handling of  intellectual property in relationship to academic discourse  surrounding derivative artworks, particularly such artworks created by  women. Rather than creating transformative artworks, TWC publishes  articles about them and the fans who create them. This involves  quoting potentially copyrighted material via screenshots and video  stills. I'll also discuss Open Access and Creative Commons copyright, which TWC uses, as well as the implications of gender.  Most academic journals will not print screenshots from film or TV  without a copyright release, and most will not permit reproduction of  song lyrics--all of which limits scholarship about transformational  artworks. This has implications for female-generated texts in  particular, furthering their erasure. I'll discuss copyright concerns and explain how and why TWC chose to go a different way than traditional academic journals.

Laura Murray, Queen’s University, Kingston, Ontario
Boys and Their Toys? On the Gender Dynamics of Copyright Activism in Canada

This paper addresses not a female creative subculture but a predominantly male political subculture, but nonetheless I think it may complement the other papers you will assemble for your symposium, because it will illuminate relationships between gender, collective labour, public space, and conceptualization of creative process. Specifically, I am interested in exploring why and how the public interest copyright advocacy community in Canada is so predominantly male. What I have found striking over my 5 years as a copyright scholar and advocate in Canada is that while one might suppose consumer rights, educational rights, remixing, downloading, and fair dealing to be practices or necessities of concern to both men and women, and the “public domain” to be shared between men and women, the world of copyright activism is almost exclusively male. As in the United States, where Lawrence Lessig has been the “star” of copyright activism, Canada has Professor Michael Geist of University of Ottawa, a winsome tireless one-man show who has been enormously effective in mobilizing public attention on the need for users’ rights. Canada has many productive and talented female copyright scholars; proposed changes to the Copyright Act will have direct effects on the working practices of teachers, librarians, and students, the majority of whom are women; the “Fair Copyright for Canada” facebook group has almost 50% women among its 90,000 members -- and yet women are far underrepresented in public copyright discussion. My research for this paper will proceed through three stages. First, I will do a simple count of the gender balance of IP scholars and facebook group members, as compared to the gender balance of public statements by IP scholars and facebook group members. Then I will analyze the rhetoric and topics of online discussion surrounding Bill C-61, the Conservative government’s most recent copyright legislation that produced a huge public furore, considering in what ways the topics, mode, or framing became masculinized. I have written previously on the “protection” rhetoric in Canadian copyright discussion, in which artists have been feminized; here I will investigate whether or how discourses of freedom and “getting what you pay for” have been explicitly or only implicitly gendered. Third, I will interview the major female IP scholars in Canada, and ask them about their choice to focus on academic venues rather than blogging or other public commentary, and their sense of the role gender plays in copyright policy advocacy.  While I cannot yet confirm my conclusions, I submit this proposal because it resonates with the statement on your call for papers about the political dangers of a world where “what boys do” is accorded more importance than “what girls do.” My practical question as we proceed with the endless task of copyright watching is how to get more women involved, or how better to recognize the work they are already doing -- and whether having more women involved would broaden the range of issues and perspectives engaged. The theoretical question is whether my observations here will confirm conventional (and suspect) ideas about gender and creativity (spark v. nurture, individual v. collective, public v. private, heroic v. patient, etc.), or offer ideas to dismantle and disarticulate these tiresome polarities. While my case study is Canadian, I am confident that many of the same trends would be visible in US copyright discussion, and I would welcome the opportunity to discuss these with other scholars attuned to issues of women's public and creative voices.

Panel III: Cui Bono? Economic Contexts

Kristina Busse, Independent Scholar
Original Genius and Transformative Repetition

Aesthetic theorists often posit the creative process as interplay between the familiar and the new, between repetition and difference. However, different periods of literary and philosophical thought place emphasis more strongly on either continuity or authenticity. Thinkers of modernity often privileged originality and artistic genius, as they laid the groundwork for /a value system that still affects the landscape of contemporary popular culture. In contrast, countering this ascribed modernist valuation of originality, postmodern theorists and artists have emphasized pastiche, appropriation, and intertextuality. In so doing, they revalue repetition as a central mode of creative production.  Fan writers and artists can be understood in this aesthetic framework of challenging themselves to create within firmly established boundaries: as they rework and reshape popular texts, emphasizing and foregrounding their intertextuality, fan texts can be understood as postmodern creations par excellence. Fan authorship thus offers a cultural counterbalance to ideologies of originality. With their emphasis on (often voluntarily) enforced restrictions to restage common narratives or character portraits, fan productions revels in the inspirations borne of intertextuality and repeated cultural reference points.  Such valorization of aesthetic value judgments, however, can often be at odds with legal arguments, many of which require some form of originality to counter copyright infringement accusations. Legal arguments that base themselves on transformativity require an aesthetic model where originality is central. The relationship between aesthetic and legal theory becomes even more complicated when introducing the ways in which potential literary interpretations can play a role in copyright cases, such as literary interpretations used to support the defendant’s case in The Wind Done Gone lawsuit. Indeed, fan activists often follow legal trendsetters in their emphasis on originality and authenticity, thus harking back to more modernist ideals of originality and individual creation. For example, the Organization for Transformative Works (OTW), a nonprofit fan advocacy organization exemplifies this tension: although OTW is dedicated to archiving fan works in all of their repetition and multiplicity, the name itself suggests a valorization of the transformative aspect of fan creative works. OTW’s emphasis on the transformative properties of fan authorship is clearly strategic: its valuation of transformation (and implicitly originality) reflects a legal culture that upholds values of originality, linking originality with ideas of ownership. But no matter how strategic the rationale, this turn to language of transformation suggests that even in its cultural embrace of repetition, fandom still remains at least tenuously invested in more traditional notions of originality, transformation, and uniqueness.  In contrast to such a model of artistic genius, originality, and ownership of individual creativity, I’d like to reemphasize the fan community as a collective creative culture that values sharing, allusion, and repetition as aesthetic (and affective) choice. While the community often addresses the collective nature of their interpretations and even creations, external models of intellectual ownership remain prevalent when it comes to individual fan works. Focusing on the intertextuality that suffuses and often defines fan communities and characterizes their fan works, I thus want to emphasize a fannish model that advocates repetition and not difference as a potentially driving aesthetic principle.

Abigail De Kosnik, UC Berkeley, Berkeley Center for New Media
Bound by "Free": Female Fan Labor and the Copyright Compromise

The intellectual property wars that have raged between media producers and fan appropriators for decades has apparently yielded a compromise that satisfies both camps: fans may "remix" copyrighted media texts as long as they distribute their creations for free.  However, as theorists such as Tiziana Terranova and Mark Andrejevic have proposed, the user-generated content on which the Internet's value depends can be conceptualized as unpaid labor.  Through this lens, fans' willingness to give away their stories, vids, mash-ups, and mods might be regarded not as a way that they safeguard themselves from IP lawsuits, but as a way that they forego compensation for their promotion and marketing of mass media products.   This essay examines why fans, particularly female fans, are reluctant to frame their remix labor as work worthy of remuneration.  Some fan scholars argue that the pleasures and richness of participating in fan cultures lie in the explicit distinction between fan activities and paid work, and characterize fan communities as "gift cultures" whose structures and protocols of exchange are markedly different from those of market economies.  While these claims have significant merit and resonate with many fans' perceptions of their modes of engagement, I draw connections between these objections to paid fan production and long-standing women's labor issues.  These issues include: the perception of women's labor - childrearing, social reproduction, community maintenance, and craft-making - as necessarily unpaid; women's historical undervaluation of the monetary value of their work and their minimization of expectations for pay; and women's persistent desire for "safe spaces," that is, communities apart from male-dominated systems (including the marketplace) in which women can collectively express and explore specifically female desires, experiences, and perspectives. 

Zahr Said Stauffer, University of Virginia School of Law
Taking the ‘Grrr’ out of ‘Grrrl’: Strategically Gendered Marketing in Cathy’s Book

A multimedia novel geared for teenage girls, Cathy’s Book arrived on the young adult fiction scene in 2006. It was an immediate bestseller and, along with its sequels Cathy’s Key and the forthcoming Cathy’s Ring (together hereinafter “the Series”), it has had a cult following in the years since. Its authors, Sean Stewart and Jordan Weisman, aggressively marketed the Series as an Alternative Reality Game (ARG) in a way that blended fashion, creativity, self-presentation, the body, and gender. In this project, I consider the effects of gendered elements of the marketing on modes of downstream creativity. I posit that Stewart and Weisman’s gendered prepackaging of the fan experience raises questions about creativity and consumption, and impoverishes the Series’s fan culture.  Specifically, I ask whether the prefab nature of this fan community offers a sublimation or substitution for an autonomous fan community, and in so doing, stifles certain kinds of creative possibility. Instead of generating the kind of innovation and creativity we see elsewhere in fan works, this Series seems to contain and constrain secondary creativity energy. Fans are encouraged to reach and share the correct ‘answers’ to various puzzles but not stimulated to produce independent responses within the fan framework (which I think raises important questions about how to think of ARG’s and their interaction with fan cultures). Or, at their most creative, authors of fan art here are encouraged to seek ‘Cathy’s’ approval for their art submissions. In short, they are being directed to act the part of the good girl, either through passive, non-creative engagement, or through creative but accommodating artistic endeavors. At its core, the Series exists to patronize and be patronized by a female subculture, but that subculture feels patriarchal, top-down, and preordained rather than autonomous, subversive, and innovative. I draw on poststructuralist theories to argue that the source work not only benefits from, but in several senses needs, independent fan reception and reworking. My aim is to connect the dots between the gendered aspects of the novel's aesthetic and marketing agenda, and the modes of downstream creativity in this mostly female subculture. As a matter of IP policy, we should be concerned if authors can market their way out of pesky but fair uses of their works by strategically gendering –perhaps effectively silencing— what they view as their opposition.