Ahh, copyright. The fountain of creativity and artistic expression. Unless, of course, you're a fan of someone else's copyrighted work and want to express that artistically by reenacting your favorite episode.
This Halloween weekend here in SF, a local non-profit theater group called CounterPULSE was sponsoring just such an occasion with a live-action version of the Buffy the Vampire Slayer musical episode "Once More With Feeling." The show was being put on as a one-time gig and as a tribute to the fans and geeks that have been obsessed with the show during its
sixseven-season run. The idea was not to substitute the show for any purchase of a Buffy product, and if anything, it might have encouraged more people to rent or purchase the series on DVD.
But it was not to be. Word of the musical got out on the 'net and soon enough, the legal department at Fox slammed the hammer down on CounterPULSE with a barrage of Cease-and-Desist letters and expensive legal threats. Predictably, CounterPULSE quickly folded and canceled all the scheduled shows, despite the fact that the creative force behind Buffy (Joss Whedon) has said he had no objection to the performances.
So what does one make of this? Well, according to the doctrines of traditional copyright law, the copyright owner (here, Fox) has the exclusive right to control public performances of its works, including the musical episode. But does this make sense? Is this the kind of copyright policy we want? Those are tougher questions. Just as artists are an engine for creativity in our culture, so are fans. An artist on their own can make a work of art, but only fans can make it mean something in our society. Fans take art and translate it into culture. They invest in it, obsess over it, share it, and spread it to others. They turn it from an isolated item into a means of communication. (For more on this, see danah's posts here and here where she breaks it down more eloquently).
But where is the recognition of this reality in copyright? Well, before the digital age, it was often in the idea that copyright was a public right and fandom was a private series of acts. Copyright would control public distribution of works and fans would collect them and share them and discuss them in private. More importantly, they would do so without making "copies" of them; instead, they would trade physical goods and have verbal conversations. Some would make costumes or their own art based on the subject matter, but those were generally kept private or only exhibited at limited forums like Comic Cons.
Yet now, in the age of the Internet, online fandom has become massively popular. There are huge communities of fans who are having millions of conversations about the copyrighted works they love. Not only are many of these conversations happening in public on the Internet, but because they are conducted over networks with computers, they are had by making copies -- copies of the works, copies of clips and snips, and copies of images and sounds.
All these copies are potential copyright problems, just as the live-action Buffy musical was a potential copyright problem because it was public. Yet copyright does not explicitly protect these parts of our culture the same way it protects the artists who create the original fandomed work. There is, of course, the fair use doctrine in copyright law, but traditionally, it has not included fan-based works unless they were explicitly parodies, commentary, or criticism. Perhaps the time has come that it should. If we want copyright law to be a vibrant engine for fan creativity as well as artist creativity, fans must be treated as equal partners is cultural production and not just as passive consumers of "artistic" creations.