Comments on Killshandra's interview

Date: Mon, 16 Aug 1999 20:31:20 EDT From: [email protected] Subject: Re: An interview with Killashandra

A very perceptive and thoughtful interview with Killashandra. Thank you, Karmen.

I do have a couple of comments about this part of the interview, however:

> Print fans fear exposure, and the loss of a tradition they have loved for years.

I truly don't think *all,* or even most, print fans feel that way. I agree that a few, very vocal fans have expressed those sentiments. However, most of them have *not* been in K/S fandom since "the time of the beginning," but became involved during the last ten years or less. I think we need to look at cohorts, or generations within K/S fandom, because generally speaking the connections among fans tend to be most powerful within the same cohort, among those who came into fandom around the same time and bonded with one another in the process. It's from those connections that K/S fandom has developed common cultures, and I use the word in the plural deliberately.

Most of the fans I know who have been involved in K/S fandom since the early 1980s, when K/S fan fic became to apppear in zines in large numbers, are not nearly as hostile to the net as those who became involved more recently. I'm thinking of zineds like Kathy Resch (T'hy'la), Dot Laoang (Amazing Grace) and the late Emily Adams (KaleidoScope). Perhaps that's because they came into K/S fandom when it was larger, more diverse, and less tightly bounded. But I will be going into that issue in my own interview ...

Net fans feel as though they must > compete for validation, and at the same time are > resentful of the limitations imposed by a tradition > they don't share.

Honestly, I have not seen much evidence that net fans desire validation from the printfan community. And I think net fans actually have little reason to need such validation. They are free to write what they want and either post it to the newsgroup or send it to a zine or both. Fan fic is pretty much a seller's market, after all.

Judith

Date: Tue, 24 Aug 1999 22:39:55 EDT From: [email protected] Subject: Re: An interview with Killashandra

Just got a chance to read Killa's interview all the way through, since it arrived as I was going out the door to socalled vacation.

Lots of good stuff (I can't for the life of me imagine what part of AOL allowed a topic like "are K and S lovers?"--must have been a wilder AOL!) esp. on the history of fandom, both Trek and Highlander.

The bit below caught my eye:

<< And worse, net fans don't care about that years- deep tradition, and their first experience of fandom was reading it on their computer screen, so what do they care about zines? >>

Guess I'd put it a little differently--there are some of us, like me, who can't *get* at that history, even if we want to. Some of us live in places where there are no cons, or no local cons. Some of us live in circumstances where keeping a lot of paper around is awkward, or keeping zines with possibly explicit images or stories is awkward. Some of us haven't got the money to invest in zines. Some of the zines seem not to be available anymore. (I believe some of these facts are among the reasons lying behind the Foresmutters Project that Judith and Mary Ellen have been working on.) So it's not always hostility--in some cases it's unbridgeable ignorance. I know there was lots of writing about K/S before I got going as a web writer, but I can't easily get at it, and now months/years after I've got involved in webfic, the moment has passed when I cared enough to do that kind of research.

But I digress. I much enjoyed Killa's comments on her start in this genre.

raku

Date: Tue, 24 Aug 1999 23:31:14 EDT From: [email protected] Subject: Re: An interview with Killashandra

Raku, responding to Kilal's comments on the net/zine issue:

><< And worse, net fans don't care about that years- deep tradition, and their first experience of fandom was reading it on their computer screen, so what do they care about zines? >>

Raku wrote,

> Guess I'd put it a little differently--there are some of us, like me, who can't *get* at that history, even if we want to.>

That comment of Killa's has troubled me ever since her interview was first posted. I find it troubling because it seems to assume that zine fandom is built on a deep, strong, monolithic tradition--Killa did call it "years-deep." And, as a K/S fan who has been active in printfandom for the last 21 years, I just can't buy that. I will be up-front and say that I think that is a myth propagated by printfen who feel, shall we say, "challenged" by the internet.

K/S print fandom is not a single line of transmission from the Time of the Beginning to the present; it is a very wide river with many currents and eddies. Nor are the current crop of K/S printfen the lineal heirs of the K/S fen who gave birth to the genre approximately a quarter of a century ago. The current crop of K/S writers have been in fandom for less than a decade, if that. They came into fandom at a time when K/S was well-established and secure. Many of them have not even read the classic stories and novels of the early years of K/S. Those who have, seem to see little of value in the classic K/S works. For example, many of the current crop have not even read the novel "Courts of Honor" that many K/S fen consider the pinnacle of K/S writing. Some find it frankly unreadable because it is too complex, too full of ideas, too densely plotted.

On the netfan side, I can't agree that K/S fen of the nettish persuasion do not care about zines. To the contrary, I see netfolk eagerly borrowing, buying, reading and blissing out on old zines. But for the reasons I tried to explain above, this does not necessarily bring them closer to the current crop of printfen, who have their own tastes and aesthetic preferences which are quite different from the K/S fiction of the late 70s through the mid-80s.

Just my two slips,

Judith

 

Date: Wed, 25 Aug 1999 09:41:12 -0700 (PDT) From: Karmen Ghia <[email protected]> Subject: Re: An interview with Killashandra

--- [email protected] wrote: > From: [email protected]

>> Just got a chance to read Killa's interview all the way through, since it arrived as I was going out the door to socalled vacation.

Where and what WERE you doing?

>> Lots of good stuff (I can't for the life of me imagine what part of AOL allowed a topic like "are K and S lovers?"--must have been a wilder AOL!) esp. on the history of fandom, both Trek and Highlander. The bit below caught my eye:

<<< And worse, net fans don't care about that years- deep tradition, and their first experience of fandom was reading it on their computer screen, so what do they care about zines?

>>Guess I'd put it a little differently--there are some of us, like me, who can't *get* at that history, even if we want to. Some of us live in places where there are no cons, or no local cons. Some of us live in circumstances where keeping a lot of paper around is awkward, or keeping zines with possibly explicit images or stories is awkward. Some of us haven't got the money to invest in zines. Some of the zines seem not to be available anymore. (I believe some of these facts are among the reasons lying behind the Foresmutters Project that Judith and Mary Ellen have been working on.) So it's not always hostility --in some cases it's unbridgeable ignorance.

I read that line as more indifference than hostility or ignorance. My own feeling is that the internet is more than meeting my needs; why should I pay money for something that I can get for free?

>>I know there was lots of writing about K/S before I got going as a web writer, but I can't easily get at it, and now months/years after I've got involved in webfic, the moment has passed when I cared enough to do that kind of research. But I digress. I much enjoyed Killa's comments on her start in this genre.

Killa's mailbox is still full but I will forward all comments ASAP.

Karmen

 

Date: Wed, 25 Aug 1999 10:41:25 -0700 (PDT) From: Karmen Ghia <[email protected]> Subject: Re: An interview with Killashandra

--- [email protected] wrote: > From: [email protected]

>> Raku, responding to Kilal's comments on the net/zine > issue: > >

<<< And worse, net fans don't care about that years- deep tradition, and their first experience of fandom was reading it on their computer screen, so what do they care about zines? >> > >

Raku wrote,

> > Guess I'd put it a little differently--there are some of us, like me, who can't *get* at that history, even if we want to. That comment of Killa's has troubled me ever since her interview was first posted. I find it troubling because it seems to assume that zine fandom is built on a deep, strong, monolithic tradition--Killa did call it "years-deep." And, as a K/S fan who has been active in printfandom for the last 21 years, I just can't buy that. I will be up-front and say that I think that is a myth propagated by printfen who feel, shall we say, "challenged" by the internet. >>

Well, I tried to forward this to Killa but her mailbox is full. I'll try again in a few days. But for now I will climb out of my cage and onto a slender sapling limb and express the Ghia point of view:

First of all, Killa's comments on prinzolandia blew my mind because I always thought she came out of the print zine scene.

I suppose she has reasons for her opinion and my questions were not in-depth enough to bring them to light. Perhaps she would not have told me and that's certainly her prerogative; I dunno, I didn't' ask her why. Maybe someday she'll tell us.

I have some serious problems with the print zine concept. Mainly that money changes hands and I've no idea how that can be legal under existing copyright laws. (Maybe you can clear this up for me, Judith, I've been too shy to ask until now.) Not that I am Janey Straightarrow where copyright is concerned in other areas and have been lectured more than once at Kinkos, however, it does puzzle me how zine eds can get away with it.

I think the mere fact that they have been getting away with it for years and years would or should create a certain amount of paranoia. I know it would for me. I was even told by a printfen that she was worried that the internet would stir things up so much that Paramount might come down on any obvious Trek abusers they could find, i.e., print zine people. I realize even paranoids have enemies but this seemed a bit much even for me.

My problems are more theoretical. I think that the permanent, physical zine you hold in your hand creates a structure and hierarchy that cannot exist on the web. Physical zines have to be made, carted around to cons, packed, mailed, etc. Something that exists in this type of format would need a pretty solid structure to survive as long as zines have survived, if not become some kind of fetish object. And I'm sure they survived because they were the underground; they were the meeting place for ideas that were not shared by the dominant social group.

Now the internet is the underground, and more elusive and ephemeral temporary autonomous zone (TAZ) we might never find again. Hakim Bey, who hates the internet because it's more entertainment than revolution (but that's his problem), goes on and on about TAZ's and sometimes he's right: if you don't like or don't quite fit into your social structure, go make a new one, if only temporarily. And, unlike a con, you don't have to pay for parking on the internet. Also, one does not have to interact in somebody else's structure, even the fan run ones.

And I like the internet trek community, I like it a lot. It is the most comfortable way for me to be in the trek world. It is a very safe place to explore ideas I cannot express to most of the people I know in RL. Not that I don't have good relationships with my RL friends but there is really only so much you can ask of people, good, solid, reliable people, who can't quite remember who Mr. Kyle is.

I tried to read some slash theory and actually managed to finish whatzername's _Enterprising Women_ before my head started to explode. My issues with printzinolandia are not addressed there.

When I first heard about K/S I was in Prague and had no way to get anywhere near it. I grew up where it was cool to like TOS as long as one didn't go over the edge and start going to cons. I'm sure cons are wonderful, I'm just explaining my own twisted youth. I also fear I might become more obsessive than I am if I started actually meeting fellow fans. Besides, I want to talk about gay erotica and writing and they want to talk about their object of fannish attention. As you can imagine - it's not pretty. Like any highly populated institution there is a certain proportion of fruitcakes out there in the print zine world. At least on the internet no one is going to pin you against the buffet while they explain, with great passion, why X is superior to Y. Sorry, I have a low stress threshold for such things. So in the interest of sanity, I steeled myself to forget the whole K/S thing. Then, WAMMO!: I find the link to R'rain's archive and I'm hooked like a bass. I join ASCEML, I lurk, I meet some folks, I write some stuff, I meet more folks, I wade into the fray with Mary Ellen - twice, and I discover that there is trouble in printzinolandia: certain people there are worried that the net fandom will overtake print fandom. And you know what? They might have something to worry about.

For several years I myself was hoping the internet would go away. It seemed economically and technologically elitist; as Raku points out fan fic on the web is free if you can afford a $1,500 computer. (I know it's free at the library but it sucks, at least in LA it sucks.) So now I have caved in like rotten fruit and am a big internet junkie.

And now I'm such a junkie of unfiltered fanfic, I don't think I could deal with reading what an editor has picked out for me to read. Why should I have my experience mediated when there is always the immediacy of the web?

It is true that 90% of the people I have met on the web who have roots in the print zine world have been wonderful folks. The other 10% have not been. Actually, that's a pretty damn good ratio, however, the 10% is like a splinter in the big toe of fanfic for me. I'm doing fairly well at ignoring it, but still, it's there.

<<Judith wrote,

<<K/S print fandom is not a single line of transmission from the Time of the Beginning to the present; it is a very wide river with many currents and eddies. Nor are the current crop of K/S printfen the lineal heirs of the K/S fen who gave birth to the genre approximately a quarter of a century ago. The current crop of K/S writers have been in fandom for less than a decade, if that. They came into fandom at a time when K/S was well-established and secure. Many of them have not even read the classic stories and novels of the early years of K/S. Those who have, seem to see little of value in the classic K/S works. For example, many of the current crop have not even read the novel "Courts of Honor" that many K/S fen consider the pinnacle of K/S writing. Some find it frankly unreadable because it is too complex, too full of ideas, too densely plotted. >>

I've never read "Courts of Honor" I wish you guys would put it on the Foresmutters webpage so I could. It's like the original Woodstock; everybody that was there talks about it with awe and the rest of us just smile politely as if we understand. It is interesting you mention exactly that novel and unfortunate I promised Mary Ellen I wouldn't discuss it in public ever. However, my understanding of the "Courts of Honor" scandal is exactly what creeps me out about the zine world.

I'm a musician not a lit crit type but the two stories I've read on the Foresmutters project have not exactly lit my fuse. I wonder why the writers are so restrained, why there's no graphic sex, why they take place in remote locations. Okay, I know this is my problem and I'm working on it. But what's the big deal with these stories? If the theory is that net fic evolved from the lineage of these two examples, I seriously wonder if there wasn't some kind of alien intervention around the late 80's. Please set me straight on this, I neeeeeeeeeed it.

Judith wrote,

>> On the netfan side, I can't agree that K/S fen of the nettish persuasion do not care about zines. To the contrary, I see netfolk eagerly borrowing, buying, reading and blissing out on old zines. But for the reasons I tried to explain above, this does not necessarily bring them closer to the current crop of printfen, who have their own tastes and aesthetic preferences which are quite different from the K/S fiction of the late 70s through the mid-80s. >>

I suppose I am unusual, aside from a tepid desire to read "Courts of Honor" and so to know what all the fuss is about, I have almost interest in fanfic zines. Not even for the artwork as I prefer to let my mind's eye illustrate what I read and it's bad enough I have the cast of TOS romping through my head on a nightly basis. (This is the very reason I refused to watch the video of Springsteen's "Rolita." I'd seen it in my head for too many years to allow another interpretation in there. No room left anyway.)

Ah, well. I never claimed not to be wacky.

Still yours,

Karmen

 

Date: Wed, 25 Aug 1999 23:29:16 EDT From: [email protected] Subject: Re: An interview with Killashandra

The Little Car mused:

<< I read that line as more indifference than hostility or ignorance. My own feeling is that the internet is more than meeting my needs; why should I pay money for something that I can get for free? >>

Yeah, I think many feel that way. I don't mind the principle of paying, so much, because I know what the money is going for, but others do mind. When I want print, I want *bound* print, pref. in a real binding, on real paper, with real pix. Otherwise I websurf. Different medium.

raku

Date: Wed, 25 Aug 1999 23:41:13 EDT From: [email protected] Subject: Re: An interview with Killashandra

Karmen wrote, also asking about copyright and zines:

Judith and I disagree a bit, respectfully, on the zine issue. She will be able to put her own view forward more clearly than I can, but the theory regarding zines for sale has been that *provided* you never do more than break even, that is to say cover the costs of producing your zine, you're not actually making a profit and therefore are not infringing. Randylanders recently put forth that view in the long discussion on the future of zines on A.S.C. Others have said the same thing (that don't make it right, of course, necessarily, it just makes it a common view...).

My view is that fanfic does indeed infringe copyright, and we're lucky they don't come to get us. I believe we're too small potatoes for them to care, not to mention the bad publicity. I put in the disclaimer in my story, but I am not at all confident we have a legal leg to stand on, were TPTB ever to want to bother suing us (unlikely, in my view).

Judith I think believes we are not infringing in web or print production, but she'll speak for herself.

On to the below: << And I like the internet trek community, I like it a lot. It is the most comfortable way for me to be in the trek world. It is a very safe place to explore ideas I cannot express to most of the people I know in RL. Not that I don't have good relationships with my RL friends but there is really only so much you can ask of people, good, solid, reliable people, who can't quite remember who Mr. Kyle is. --- Yeah, I feel the same way. I've been surprised by how comfortable the various incarnations of the newsgroups have been, but there you are. ---

I tried to read some slash theory and actually managed to finish whatzername's _Enterprising Women_ before my head started to explode. My issues with printzinolandia are not addressed there. >>

ROFL! A friend who's also keen on Trek gave me a copy. I flipped through the pages as she was sitting there with me, and we hit the pic of K and S together. I gather I emoted somehow, because she began apologetically explaining to me that there are some people who think K and S are lovers, they write stories about them, the stories are called slash, etc. For various reasons it's important she not know my ah hobby, so I couldn't very well say Oh yeah I know slash, I know some of the best slashers out there... I was gagging trying not to laugh at the bizarreness of the situation. Believe she concluded I'm somewhat homophobic and parochial... I still snort thinking of it. But I read the book end to end. Thought it was ok, in an academic kind of way. I assume it's been discussed a lot on the net?

raku, musing on Karmen's long post...

Date: Thu, 26 Aug 1999 10:01:04 PDT From: "Skazi netilsky" <[email protected]> Subject: Re: An interview with Killashandra

raku wrote:

>My view is that fanfic does indeed infringe copyright, and we're lucky they >don't come to get us.

I agree with the first part, but I don't think luck has anything to do with why TPTB don't come after us. First Bantam Books, then Pocketbooks paid for the right to be the exclusive publishers of ST fiction. That means, yes, profit or not, we are infringing on the rights of a corporate entity when we write.

However, copyright laws are designed to protect a creator's ability to profit on her/his ideas -- not to say, "This is my idea and no one else can even think about it." Back in the '70s when fanfic started, ST was a dead issue commercially. No one was making enough money on it to matter. Copyright holders and the companies who liscenced the right to use ST names and images felt lucky to make the profit they did and did not feel threatened by any penny-enny fan-generated merchandizing. Therefore they did not vigourously defend their copyrights... And the longer you go without doing that, the harder it becomes to prosecute because it becomes more and more difficult to prove that the copyright holder's ability to make a profit is being threatened.

I think looking back at the history of the Star Trek franchize and fandom, it's pretty clear that fan fiction has enhanced rather than detracted from the money-making potential of ST. Paramount and Viacom go after people posting pictures or spoiler scripts because they think that this may cause people not to go to thier movies or buy those images in the magazines they produce. If Pocketbooks became convinced that a significant portion of thier market was reading fanfic and deciding not to buy thier books for that reason, they might come after us. This hasn't happened and isn't very likely to now or ever.

Lucas went after SW slash for a while because he (or his lawyers) felt this hurt the "family" image of that series. I don't think they ever sucessfully prosecuted on these grounds, though.

Fan fiction is illegal, yes, but unethical? In my opinion, no. Storytelling is inherently collaborative. We all borrow on ideas we've heard elsewhere. ST itself was created collaboratively. "Mr. Spock" was the creation of a team of writers, directors, artists and actors -- not of any one individual. Fan fiction does no harm to the individuals and corporations that generated those particular manifestations of the cultural myths that are our *shared* inheritance. Creating more variations on these stories makes us all richer, not poorer.

Date: Thu, 26 Aug 1999 19:30:29 EDT From: [email protected] Subject: Re: An interview with Killashandra

In a message dated 99-08-26 13:01:21 EDT, you write:

<< Fan fiction is illegal, yes, but unethical? In my opinion, no. >>

I certainly don't think fanfic is unethical. Well, most of the time I don't. I squick sometimes at the thought I'm borrowing the actor's personal appearance. But mostly the actors seem not to mind the majority of fanfic stories.

IN the end I think what keeps us safe is PR: as Skaz points out, TPTB have a lot to lose by dumping on us all.

raku

Date: Fri, 27 Aug 1999 07:09:40 PDT From: "Skazi netilsky" <[email protected]> Subject: Re: An interview with Killashandra

raku say:

>I certainly don't think fanfic is unethical. Well, most of the time I >don't. > I squick sometimes at the thought I'm borrowing the actor's personal >appearance.

Oh, yeah, there's that. I recently found out that Walter Koenig found the Chek-slash on the web. And it *totally* creeped me out. I told the person who'd spoken to him to say, "No, no! Bad actor! Bad actor! Out! Out! No, no!" It's not written for him or about him. But if I was an insecure, neurotic, perpetually in a state of mid-life crisis type who's always been defensive about my sexuality, and I came across homoerotic fiction starring a character that I and only I have been associated with for nearly forty years now, I'm sure it would be a giant, unnecessary step closer to the funnyfarm for me.

I feel bad about it, but what the hell do you do? Ammend your warning say, "Inappropriate for those under 18 and Walter Koenig -- Really, dude, no matter how curious you are, reading this stuff is just going to fuck your brain..."

Date: Fri, 27 Aug 1999 13:04:22 EDT From: [email protected] Subject: Re: An interview with Killashandra

In a message dated 99-08-27 10:09:51 EDT, you write:

<< I feel bad about it, but what the hell do you do? Ammend your warning say, "Inappropriate for those under 18 and Walter Koenig -- Really, dude, no matter how curious you are, reading this stuff is just going to fuck your brain..." >>

ROFL! I'm howling with laughter. I also want a pic of WK's face when he meets up with that warning. Bet Jungle Kitty would not be shy about getting one from him.

raku, hugely amused

Date: Sat, 28 Aug 1999 12:56:33 EDT From: [email protected] Subject: Fan fic and Copyright (was An interview with Killashandra)

In a message dated 8/25/99 10:41:48 PM EST, [email protected] writes:

> Judith I think believes we are not infringing in web or print production, but > > she'll speak for herself.

Well, then, I guess I'll have to jump in here! Will try to avoid writing a brief, 'cause if I did, it would be the third one this week.

In my experience over the years of talking and writing about copyright issues with Trek fans, the biggest hump to get over (so to speak) seems to be the concept that there are *exceptions* in copyright law to the general rule that you can't copy someone else's product. People get stuck on the undeniable reality that there is "substantial similarity" (the term of art in copyright law) between fan fic and the parent product, so how can fan fic *not* be infringing?

Yes, fan fic copies. That doesn't resolve the copyright issue, though, because of those pesky exceptions.

I believe that non-commercial fan fic falls squarely within the "fair use" exception to the exclusive rights of the copyright owner. I base this on a reasonaby exhaustive reading of the case law, treatises, legislative history of the U.S. copyright statute and so forth. "Fair use" is a statutory EXCEPTION to the exclusive rights of the copyright owner. It "confers a privilege to use copyrighted material in a reasonable manner without the owner's consent." *Belmore v. City Pages, Inc.,* 880 F.Supp. 673, 676 (D. Minn. 1995).

Since fair use does not require the copyright owner's consent, I'm not even going to go into the issue whether Paraborg et al. have implicitly consented to fan fic or lost the right to enforce their copyrights through inaction. That's a whole 'nother legal doctrine known as estoppel, and I want to stick to one issue for the moment.

Fair use is one of a number of statutory exceptions to the exclusive rights of the copyright owner. Other exceptions apply to reproduction by libraries and archives, performance or display in the course of teaching activities, secondary transmissions other uses of copyrighted material. Fair use (which originally developed in the case law and eventually was codified in the statute) is the general, catch-all concept that covers other potential exceptions.

The fair use section of the statute is 17 U.S.C. 107, "Limitations on exclusive rights: Fair use." That section states, "Notwithstanding the provisions of 106 and 106A, the fair use of a copyrighted work ... is not an infringement of copyright." It's important to be clear about this from the get-go: Fair use is NOT INFRINGEMENT. It's not "infringement-but," is it not infringement at all.

How do we know whether a particular use of copyrighted material, in this case fan fic, is "fair use"? Well, the "fair use" section of the statute, 17 U.S.C. 107, sets forth four "fair use factors" that the courts must consider in deciding whether a particular use if "fair." Like any balancing test, the list of factors is not, in itself, terribly helpful. You have to turn to the case law to see how the courts have handled them. The case law is where the factors get converted into logical rules, propositions with an "if ... then" structure that the ordinary life form can actually use as a guide to action.

But since the factors are there in the statute, I'd better quote them:

(1) The purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes; (2) The nature of the copyrighted work; (3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and (4) the effect of the use upon the potential market for or value of the copyrighted work.

It's pretty commonplace to note that the fourth factor, the impact on the market for the original, is by far the most important of the four. In fact, the other rules are important primarily because they help to resolve the all-important fourth question: How will the market for the original be affected if this use is allowed?

To understand how the factors are applied in practice. you need to turn to the two most recent pronouncements on fair ue by the U.S. Supreme Court, the so-called Sony Betamax and 2 Live Crew cases. Applying the rules enunciated in those two cases leads me to conclude that fan fic is fair use because it is non-commercial and transformative.

In the first case, *Sony Corp. of America v. Universal City Studios, Inc.,* 464 U.S. 417, 451 (1984), the Court held that a non-commercial use is presumptively fair. That means that the copyright owner must present evidence sufficient to *prove* the likelihood of harm. "A challenge to a noncommercial use of a copyrighted work requires proof either that the particular use is harmful, or that if it should become widespread, it would adversely affect the potential market for the copyrighted work." Id. As a litigator, I can't overemphasize the importance of the burden of proof. It means that if all the copyright owner has to present is speculation about how the market could be affected, the user of the material wins. It's worth remembering that the district court in Sony characterized the studio's problem with home videotaping as "philosophical" rather than driven by "commercial judgment." Id. Sound familiar?

Sony gave us the rules for non-commercial uses: the second case, Luther Campbell, aka Luke Skyywalker [sic] v. Acuff-Rose Music, Inc., 114 S.Ct. 1164 (1994) gave us the rules for "transformative" uses. In that case, the Court held that 2 Live Crew's parody of "Oh Pretty Woman" was a fair use despite its plainly commercial nature. Campbell is by far the Court's most comprehensive explication of the "fair use" doctrine to date, and if you're going to read any of the case law at all, I strongly commend Justice David H. Souter's literate and witty opinion (it shows that a friend of Christa McAuliffe's husband can't be all bad.)

Under the Supreme Court's interpretation of "fair use" in Campbell, I'd feel very comfortable defending K/S fan fiction as a fair use of Star Trek. The Court analyzed each of the four fair use factors as they apply to "transformative" works:

1) The nature of the use. A work that "transforms" the original and adds something new with a "further purpose, meaning or character" is more likely to be fair than a work that merely "supersedes" or "supplants" the original.

2) The nature of the copyrighted work. This factor recognizes that creative works "tend to be closer to the core of copyright protection" than factual works. Yet some works by their very nature borrow from publicly known, expressive works. This was the case with 2 Live Crew's parody. The Court observed that this factor is probably "not much help" in the case of a transformative work, in which the creators *must* consume the original to produce the derivative work.

3) The amount and substantiality of the portion used. The Court stated that the fundamental question here is not the amount of copying in a purely quantitative sense, but the nature of the copying. Is it the kind of copying that reveals a dearth of "transformative" character?

4) The effect upon the market for the original (and licensed derivatives). This factor requires courts to consider, not just the extent of market harm caused by the particular actions of the alleged infringer, but also "whether unrestricted and widespread conduct of the sort engaged in by the defendant ... would result in a substantially adverse impact on the potential market" for the original. NIMMER ON COPYRIGHT 13.05[A][4], p. 13-102.61. The Court in Campbell recognized that a "transformative" work is likely to serve a different market from the original because, unlike a verbatim copy, it does not serve the same function as the original.

How would these concepts apply to fan fiction? Clearly, the essence of fan fiction is a transformative use of Star Trek; fan fiction does not borrow from Star Trek merely to avoid "drudgery." Fans must consume the original in order to write fan fiction; moreover, fan fiction presumes that *its* consumers also have consumed the original. Slash fan fiction is not a market substitute for the original or potentially licensed derivatives since none exist or are likely to in the foreseeable future.

Remember that given the evidentiary presumption in favor of fairness for a noncommercial use, the copyright owner must prove harm to the market for the original; it's not enough to speculate that such harm will occur. If Paramount were to sue a K/S fanzine publisher, I believe the fundamental issue to be tried would be the effect of K/S zines on the market for licensed Star Trek products and spinoffs such as commercially-published novels and new TV series and films.

If I were representing the zine publisher I would try to prove that: (a) In almost thirty years of unrestricted, unregulated fanzine publishing, Star Trek fanzines have never commanded a market of more than a few thousand purchasers. For K/S zines, the figures are much lower (most zines now have a circulation of about 125.) Because of the tiny market for K/S fan fiction, the copyright owner will never decide to license it even if for some unlikely reason Paramount wanted to get into the slash business. Further, even if each K/S zine sold represented the loss of a sale to Paramount, the market harm would be de minimis.

I would also show that (b) the sale of zines does not, in fact, result in loss of sales of licensed Star Trek products. Purchasers of K/S zines invest heavily in commercial Star Trek products, e.g. videos, novels, T-shirts, posters and multiple viewings of the films. In addition, K/S fan fiction brings fans together at conventions, where they become a captive market for licensed products.

And I'd show that (c) K/S fan fiction keeps alive its readers' interest in Star Trek and its progeny, rather than the opposite. I'd present systematic evidence to prove the above, including surveys showing K/S fans' actual purchasing practices as compared to scientifically-chosen control groups from the markets identified by the copyright owners and licensees as targets for their products. Since it's unlikely that the copyright owner could produce evidence of market harm, I'd feel comfortable about our chances of success.

In sum these are the rules that emerge from the case law:

1) Infringement is PRESUMED when the allegedly infringing work is (a) commercial and (b) copies the original verbatim.

2) Infringement is NOT PRESUMED where the allegedly infringing work is a) commercial and b) transforms the original.

3) NON-infringement is PRESUMED where the allegedly infringing work is non-commercial, EVEN IF it is NOT transformative but merely copies the original verbatim.

4) A fortiori, a non-commercial, transformative use of the original would be entitled to an even stronger presumption of fairness. This is especially so in the case of a non-commercial, transformative use that presumes its consumers will also have consumed the original.

Although since Campbell there is no hard and fast presumption of "unfairness" against a commercial use, if I were a zine publisher concerned about the legal status of my publications, I'd keep my fanac nonprofit. Incidentally, it's worth remembering that the only zine that Paramount ever threatened to sue for copyright infringement was the genzine Dreadnought Explorations, which Paramount went after because of its similarity to commercially- licensed professional fiction. When I was a law student, I interviewed Bruce Hosmer, the attorney handling Star Trek products for Gulf & Western, about this issue and he told me that DE was ordered to cease and desist because the photograph of the Enterprise on the cover suggested to the reader that this was an "official" Star Trek product. Mr. Hosmer also stated that he thought it was possible for a fanzine to be a "fair use," though understandably as the representative of the copyright owner he took a fairly restrictive view of the type of zine he considered "fair." Under his standard, though, I'd have to say that an a/u zine set in pre-Reform Vulcan, in which the characters are long-haired warriors and love slaves and may even have different names, has a certain claim to "fairness" ... but I'm not about to say anything here that will discourage good, "realistic" K/S. I don't think I need to, though, since in my opinion all nonprofit K/S fiction qualifies as "fair use."

OK, those are my thoughts for the day.

Judith

 

Date: Sat, 28 Aug 1999 15:02:59 EDT From: [email protected] Subject: Re: An interview with Killashandra

Karmen wrote, at length, on the whole print/net conundrum,

> I have some serious problems with the print zine concept. Mainly that money changes hands and I've no idea how that can be legal under existing copyright laws. (Maybe you can clear this up for me, Judith, > I've been too shy to ask until now.)

I tried to, in a separate post. On the money question, though: Zine publishing is supposed to be a hobby, a labor of love, in which the publisher barely breaks even on her out of pocket costs. The reality is slightly more complex, but fortunately only slightly.

> I was even told by a printfen that she was worried that the internet would stir things up so much that Paramount might come down on any obvious Trek abusers they could find, i.e., print zine people. I realize even paranoids have enemies but this seemed a bit much even for me.

You may be right that a certain amount of latent guilt is at work. You would have to publish a lot of zines to make any money from it, but some fans *do* publish an awful lot of zines. Then there is the art ... for example, the well-known zine artist who boasts that she finances her trips to cons from sales of her art there.

> My problems are more theoretical. I think that the permanent, physical zine you hold in your hand creates a structure and hierarchy that cannot exist on the web.

A brilliant insight and one that I whole-heartedly agree with.

> And I'm sure they survived because they were the underground; they were the meeting place for ideas that were not shared by the dominant social group.

True. Although as a middle-class subculture, Trekfans share a lot of attitudes and ideas in common with the dominant social group. This is the problem I have with Jenkins, Bacon-Smith and the other analysts of fandom as the underground, the textual poachers, etc. They ignore social class and their works lack any real analysis of how fandom articulates with its parent culture(s).

The "structure and hierarchy" implicit in zine production that you noted is one of those areas of the areas of articulation, I believe. A class analysis of the printfan subculture would look at how fans reproduce within fandom the social structures, cultural values, and use of tools and artifacts in their "parent" culture.

> Now the internet is the underground, and more elusive and ephemeral temporary autonomous zone (TAZ) we might never find again. <snip> also, one does not have to interact in somebody else's structure, even the fan run ones.

Yes, and who ever said that revolution has to be *serious*? I actually think that one of the problems with the current crop of K/S printfen is that K/S has become so respectable and bourgeoisified. There's little fan fic left in TOS print fandom that is *not* K/S. So K/S fen are not the underground any more, they are the mainstream. They are the nice straight housewives. There's no edge left there anymore. IMHO, that is one reason why printfen cringe in horror from the freewheeling diversity and gender-bending of the net culture. I'm toying with the idea of attending the next KSP party at Shore Leave dressed in black leather and an "Internet Bikers From Hell" T-shirt. Print fen make me feel that way these days.

> Not that I don't have good relationships with my RL friends but there is really only so much you can ask of people, good, solid, reliable people, who can't quite remember who Mr. Kyle is.

Yeah, my RL friends are always letting me down, that way. Some of them can't even place Kevin Riley.

> And now I'm such a junkie of unfiltered fanfic, I don't think I could deal with reading what an editor has picked out for me to read. Why should I have my experience mediated when there is always the immediacy of the web?

I still buy most of the K/S zines that come out, but they seem bland and formulaic after the unfettered creativity of the web. And if it's editorial assistance you want, Web-style beta-reading is far more effective than the editing most zineds do (i.e. none at all, except for maybe gratuitously re-writing your tragic ending into a happy ending).

> I've never read "Courts of Honor" I wish you guys would put it on the Foresmutters webpage so I could.

Mary Ellen is working on it. It's a tough sell, but she is trying.

> However, my understanding of the "Courts of Honor" scandal is exactly what creeps me out about the zine world.

Actually, that was an isolated example of something that has happened very rarely even in zinedom, and the reality was quite a bit more complex than I think Mary Ellen managed to convey. I have more compassion with the participants in that scandal than I do with zineds who regularly, year after year, crank out volumes of schlock to earn a few bucks and feel like a Big Name Fan (BNF, a term that once had wide currency in print fandom, believe it or not).

> But what's the big deal with these stories? If the theory is that net fic evolved from the lineage of these two examples, I seriously wonder if there wasn't some kind of alien intervention around the late 80's. Please set me straight on this, I neeeeeeeeeed it.

No, I don't think the theory is that net fic evolved from this lineage. There have been many generations in print and I think the net owes very little to any of them. The early stuff is worth reading for other reasons, IMHO, one of them being that it was written when it was a lot riskier to one's fannish well-being to write K/S than it is now.

> I suppose I am unusual, aside from a tepid desire to read "Courts of Honor" and so to know what all the fuss is about.

My point was merely that you can't presume that contemporary K/S printfic is the lineal descendant of the early stuff, and that it's inaccurate to view print fandom as a monolithic entity that stands against net fic and vice-versa. The current crop of printfen would like to appropropriate for themselves the status of heirs to the "classics," because as a source of power in the struggle they see themselves engaged in with the net for the soul of fandom. If you will forgive the Protestant perpective, it is sort of like the Pope of Martin Luther' s era claiming to be the heir of the martyrs of the Early Church. All I wanted to say is that the contemporary print crowd has no more claim to be the heirs of the classics than does any other group of fans, including net fans.

And by the way, I wasn't suggesting that Killashandra is trying to perpetuate the myth of the Great Tradition of printzines (I know that she came into fandom through the net); at worst, I think she may have bought into it through her friendships with print fans. Or maybe all she meant to do was give the printfan perspective.

Judith

 

Date: Sat, 28 Aug 1999 16:03:46 EDT From: [email protected] Subject: Re: Judith's post on printfen and zines

Boy, that's awfully interesting stuff, Judith. I hardly know what to snip and comment on. Could I first ask for a little explanation about the Courts of Honor business? That sounds odd.

Next, a question I'd be interested in hearing asked of folk perhaps in interviews is how much Trek fanfic had you read before you wrote your first story, and if possible could you list it, or list the ones you especially remember?

I'm very curious about the class notion, also about the idea of history-of-fanfic. I'm interested in whether netfolks had read much (i.e., whether there was any poss. of influence) before they began writing. Possibly netfen begin/began writing with fewer preconceptions? Less experience? I know that I had read only netfic, and not much of that. I read a lot of net Voy. stuff just because it was there. In TOS I'd read Killa's Turning Point, a couple of short things in the archive that weren't very satisfying, and one story of Greywolf's that I found (can't remember which, one with Blues in the title but not Blues for Allah).

There's a new person working on Tu/P right now, which is fun, but I find I am scared to say much lest I somehow stifle her. I want her to write *her* Tu/P, not one that necessarily appeals to me.

Back to reread the post.

raku

 

Date: Sat, 28 Aug 1999 14:01:28 -0700 (PDT) From: Karmen Ghia <[email protected]> Subject: Re: Fan fic and Copyright (was An interview with Killashandra)

Judith,

You are a marvel and this will definitely be archived for the benefit and edification of all who pass this way.

Rap music: I do remember there being a lawsuit that had the hipsters a little worried about 'house music' for a while. I seem to recall it all shook out the way you describe, that it was a very small part of a larger work being made into a 'new' work and so it was okay to use it. Oddly, I think the work in question was the soundtrack to an old Bogie film and Warner Bros. had its panties in a twist. Ha ha, they lost.

I'm thinking about your other post so I can respond with wit and intelligence and this could take a day or so. BTW, put me down for an Internet Biker from Hell t-shirt, okay?

Thanks again,

Karmen

 

Date: Sat, 28 Aug 1999 18:25:49 -0600 From: Kaki <[email protected]> Subject: RE: An interview with Killashandra

From: [email protected]

Just got a chance to read Killa's interview all the way through, since it arrived as I was going out the door to socalled vacation.

snip

The bit below caught my eye:

<< And worse, net fans don't care about that years- deep tradition, and their first experience of fandom was reading it on their computer screen, so what do they care about zines? >>

I've quoted raku cause somehow I can't find the original. This bit caught my eye, too. But I laughed assuming Killa was being just a bit sarcastic and meaning the opposite. The comment sounds like some I've heard from printfen(the and never-net fen kind). I just thought she was just trying to answer the question lightly without getting into it too far.

Having seen how other folks took it, I have no idea what it means. I do however know that it is a real feeling among printfen (the we netties don't care about zines). Since I am reading zines as fast as I can borrow them, I'd have to disagree. Except that I don't want the long history to be used to prevent innovation now. I love the new ideas (whether written in 1979 or 1999).

Kathleen

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