I’m Jill Bearup, this is history of fanfiction part 2, and if there’s a difference between
the derived works we talked about in part 1 and something that’s specifically fanfiction,
it’s probably copyright.
So let’s talk about it.
...
Before the invention of the printing press, to duplicate something you had to copy it
out by hand, which was quite laborious, and made starting your own underground pirated
publishing ring kind of difficult.
Not to mention expensive.
But the printing press, which allowed multiple exact copies to be made in a short space of
time, was a total game-changer.
And while churches were big fans of being able to print Bibles, they (and governments)
were quite concerned.
WHO KNOWS what people might put on paper if this new industry is not regulated!
Regulation was achieved through various means over time, like the Stationers’ Company
in England, and we’ll mostly be talking about England,
but our story for today really begins in 1710.
...
On the 10th of April 1710, the Statute of Anne came into force, which gave what basically
amounted to copyright for twenty-one years for any published work in existence (in England),
and fourteen years of copyright for anything that was published from there on out.
Its full name was An Act for the Encouragement of Learning, by Vesting the Copies of Printed
Books in the Authors or Purchasers of such Copies, during the Times therein mentioned.
Its purpose was to encourage "learned men to compose and write useful books";
it meant that people could make a living on their work, but it also meant that after some
time it could pass into the public domain where it was useable by anyone for free.
Time-limited exclusive rights to own and sell your work, what a great idea!
Then works began to pass into the public domain, and there followed thirty years of copyright
battles because... of course.
There are some differences between the Statute of Anne and modern copyright, though: because
first of all, the Statute only covered whole works,
and second of all, the understanding at the time of originality was somewhat...less specific.
Partial quotes, parody, homage, pastiche, none of these things were covered by the Statute
of Anne.
The case law of the time is very consistent: an original was just something that had no
precise copies.
That’s not quite how we use original in the modern day though, is it?
...
We’re big on originality in copyright law, and by original we mean in the novel or unique
or inventive sense; the sense which doesn’t depend on other
people’s work.
In the 18th century it wasn’t being inventive or novel or not depending on the ideas of
others that made your work ‘original’; it was just the fact that nobody had done
precisely the same thing.
But as the Romantic notion of authors as geniuses began to take hold
(as opposed to storytelling as a collaborative, participative sort of thing)
copyright law started to...change in response.
I got a really interesting message from a German viewer who said
“In what would become Germany the importance of the author and the originality of an idea-
“Originalgenie” - pardon my German -were established between 1765 and 1785.”
Johann Wolfgang von Goethe was one of the authors who saw themselves as a “genie”
because of their original ideas.
But the more popular the idea of an author as a lone genius making original works became,
the easier it was to push for greater and stricter and longer copyright regulations.
Time to feel the Berne.
...
The Berne Convention (1886) codifies the right of the copyright holder to own the thing without
even having to register.
But the author has rights not just to the thing itself, but also to derivative works.
So you, random person on the street, can’t just do what you did under the Statute of
Anne and take the characters and write some sequels about them;
because they are copyright-protected now, and that is infringement.
You can of course argue that it’s parody or satire and maybe get away with it,
but regardless, those were the rules, the works were protected for a certain number
of years for authors, or later for corporations, after which the idea was that they would pass
into the public domain to enrich...everyone, ideally.
And then came Disney.
...
If you want to talk about the corporations who have fought for most restrictive copyright,
Disney would be...pretty high up your list.
They’ve tended to clamp down less on certain kinds of copyright infringement since Frozen
happened, but that’s a story for another day perhaps.
What happened was, in the 90s, some of Disney’s works were about to come out of copyright.
And so they flexed their lobbying muscles to help get the Sonny Bono Copyright Term
Extension Act into being.
“The 1998 Act extended copyright terms to life of the author plus 70 years
and for works of corporate authorship to 120 years after creation or 95 years after publication,
whichever endpoint is earlier.”
It’s called the Mickey Mouse Act by detractors, and not entirely without reason.
We’ll see, though.
In 2019.
When things may or may not be released into the public domain.
I live and hope.
... What I’m building up to here, with this
bare-bones history of copyright, is that increasing copyright terms and ever-stricter definitions
of originality mean that the public domain,
that rich common that was supposed to benefit humanity,
has effectively been frozen since 1923.
This is pretty much unique in the history of storytelling.
Characters and stories being owned by authors or corporations or the estates of long-dead
authors is...relatively new.
And while some stuff may or may not start to enter the public domain in a few years’
time, pretty much everything since the early 20s is still under copyright.
Time for a Henry Jenkins quote?
Time for a Henry Jenkins quote.
"...if you go back, the key stories we told ourselves were stories that were important
to everyone and belonged to everyone.
Fan fiction is a way of the culture repairing the damage done in a system where contemporary
myths are owned by corporations instead of owned by the folk."
People don’t just stop telling stories about their favourite characters because of copyright.
And so something else has to happen.
So here are some things that happened.
People looked at the existing copyright rules and went, hmm, OK, well,
copyright is about protecting the rights of the author to make money from the work.
So a couple of options might be available to you.
1.
Don’t make money from it, or 2. Make sure the author doesn’t care.
... Arthur Conan Doyle’s published his Sherlock
Holmes stories between 1887 and 1927, and the Holmes fandom is old and venerable and
as prone to massive displays of drama as any modern fandom you care to name.
In 1893 when The Final Problem was published and Holmes was killed off,
Holmes fans took to wearing black armbands to express their grief and mourning.
But also in 1893 JM Barrie, yes, the Peter Pan one,
wrote a pastiche for Arthur Conan Doyle, called ‘The Adventure of Two Collaborators’.
And Arthur Conan Doyle didn’t seem to mind.
In 1899 William Gillette wrote a stage adaptation, didn’t seem to care very much about that
either, In 1911 Monsignor Roland Knox wrote a paper
on Holmes and ACD was A-OK with it...
To be fair he kind of hated his characters by that point, so that probably had something
to do with it.
Ironically the Arthur Conan Doyle estate is much less liberal on the topic of copyright
and Sherlock Holmes than the original author ever was.
In fact, not so very long ago they had a barney with the Supreme Court over whether or not
Sherlock Holmes the character could be considered public domain.
Spoiler: Sherlock Holmes the character is now public domain.
... So the author not caring about copyright is
all very well, as long as it holds out.
It’s probably fine if you’re JM Barrie writing The Adventure of Two Collaborators,
but what if you’re not?
What if the author doesn’t explicitly say that you can write fanfic or pastiche or parody?
What if the author is actively opposed to it?
What if the author is under the misapprehension that the existence of fanfiction somehow dilutes
their copyright?
How do you avoid getting sued?
Well, you go back to number one.
The legal defenses for fanfiction are first, that it’s transformative,
and second, that you’re not actually making money from it, it’s non-commercial, and
so you’re not taking money out of the author’s pocket.
At least, this is the theory.
So as time marched on, and the holders of copyright got more and more antsy about copyright
infringement, participative storytelling continued regardless.
But now it was called fanfic.
When your potentially copyright infringing work is a magazine of which there are 25 copies
which you have to physically mail to your friends,
the risk of someone finding out or caring enough to sue you about it is...pretty low.
That being said, flying under the mainstream radar and escaping the notice of, say, the
showrunners of the thing that you love?
Two different things.
Luckily, some copyright holders took more of a Conan Doyle approach.
So come back next time, because we’ve hit the twentieth century now, and things are
about to get...pretty interesting.
Thanks for watching, if you’d like to support the show you can do so via PayPal and the
donate button, or via Patreon at patreon.com/jillbearup, you can follow me on Twitter @JillBearup,
and regardless, I’ll see you next time.