Jocelyn's Other Desk

The writings of Jocelyn Smith, aspiring author, soon-to-be lawyer, once and future politician, all-around opinionated twentysomething.

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Location: Orlando, Florida, United States

I'm a lawyer in Florida, working on three novels, a screenplay, and half a dozen pieces of fanfiction at any given moment.

Monday, October 17, 2005

Now's Your Chance To Weigh In!

(And possibly get your name in a law journal.)

As you may know, I am writing a paper for my Intellectual Property seminar about fanfiction. Specifically, about where fanfiction stands in current copyright law.

I intend to take into account the arguments made by opponents to fanfic, even the laypersons, so I'm looking at the issue from several different angles:

1) Economic Rights. This is the most basic discussion we usually hear about the legality of fanfiction. Should fanfiction be protected under copyright fair use and/or free speech laws if it does not impact the original author's profits?

2) Moral Rights.
Does an author's personal opposition to fanfiction permit him to prevent it due to his non-economic (ie emotional, creative) stake in his work? NOTE: Moral rights are not a prominent legal doctrine in US copyright law, but they are in other countries, so I'll be looking into how other legal regimes define moral rights, to determine whether fanfiction would be under more legal pressure in those countries due to how they define the author's rights.

3) Common Law.
Are there other "injuries" or "harms" an author can claim resulting from fanfiction? What about "infliction of emotional distress" or the like? Could such a claim be made and what would the author have to prove about the fanwriter in order to win their case?

4) First Amendment.
Free speech does not allow the government to discriminate between allowing different types of speech based on the content of that speech. But does Copyright law allow a private individual--an author--to do so if they object to sexual content in fanficton, even if that fanfiction is not legally obscene? Should the author have such a right?

5) The purpose of Copyright Law and the fair use exceptions.
Both Copyright law and the fair use exceptions (parody, commentary, criticism, education, etc) were created by Congress to encourage creativity and progress and discussion. Would that purpose be better advanced by protection fanfiction or allowing copyright owners to restrict it?

There have already been a few papers on the legalities of fanfiction, but recent developments in case law, like Suntrust Bank v. Houghton Mifflin, (The Wind Done Gone case), have added to the definitions of fair use, parody, and commentary in a way that makes this an issue worth re-visiting.

I'm hoping to update legal discussion on fanfiction as much as possible by looking at the most recent cases and legal developments, and another way I want this paper to be different from ones past is that I'm trying to address as many arguments made by fanfiction's opponents as possible. While most if not all of the anti-fanfic crowd I talk to online are laypersons, the topics I listed above are my attempt to translate their positions into corresponding legal arguments.

SO...I put it to you, readers of my blog and occasional sparring partners: if you see an argument or a topic about the Great Fanfiction Debate that I have missed or that you would like to add to, please do weigh in! I hope to publish this paper, and I want it to be as thorough and as fair as possible.


Blogger Claire said...

If it's published, when would it come out and in what journal?

6:44 PM  
Blogger Jocelyn Smith said...

It would probably come out sometime late in the spring, assuming I get it finished by the first deadline (December) and not the fallback (January). Since I'm not a law journal member, I'd be submitting it to journals, probably Law & Technology or Intellectual Property journals at various schools. It'll depend on what the finished product looks like and what my Seminar professor recommends.

9:22 PM  

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