The Organization for Transformative Works and the Legal Fight for Fandom: An Interview with Betsy Rosenblatt

The Organization for Transformative Works and the Legal Fight for Fandom: An Interview with Betsy Rosenblatt

The Organization for Transformative Works (OTW)^[1] is a non-profit organization that supports a number of fan projects, most notably Archive of Our Own. Archive of Our Own (commonly known as AO3)^[2] is a fan-created platform for fanfiction. The site currently hosts nearly five million fanworks.^[3] In 2019, AO3 was awarded the Hugo Award for Best Related Work.^[4]

Betsy Rosenblatt, Visiting Professor of Law at U.C. Davis School of Law, is the chair of OTW’s volunteer legal team.^[5] We spoke in October about copyright in fandom and OTW’s work in that field. This interview has been condensed and edited for clarity.

Could you tell me a little bit about your legal background and how you became involved in OTW’s legal team?

I went to Harvard and then I was an attorney at the firm of Irell & Manella in Los Angeles. I was there for around nine years. While I was there I did a wide array of IP and entertainment litigation. I didn’t get particularly involved with the legal issues surrounding fandom until near the end of that.

Throughout that time and throughout most of my life I have been involved in some form of fandom, particularly the literary societies celebrating Sherlock Holmes, which were male-dominated and focused on in-person activities. In the ‘90s, as bulletin boards and the very early days of the Internet were blossoming, so was the growth of online fan communities. And those fan communities were largely led by and populated by a younger and very diverse group of tech-savvy women who really wanted to express themselves through love of their media sources. Knowing some of those women sparked my interest in the media fandom side of things, which persisted throughout law school and into my practice years.

Some of my friends were among the founders of the Organization for Transformative Works. And when I was able to professionally, I got involved in the organization on the legal team as a volunteer. One of the people I interact with and appreciate as a professional mentor and friend is Rebecca Tushnet, who is one of those founders.^[6] She invited me to get involved with the organization’s legal team and ultimately was kind enough to invite me to take over as legal chair when she wanted to still be on the team but wanted someone else to take over the leadership role.

Can you give me an overview of OTW’s legal work?

Absolutely! What we focus on is advocating for fans and fanworks, legally and educationally. We want to help fans understand what the law is surrounding fanworks, we want to help them when they have legal questions, and we want to do advocacy in those areas. We file a lot of amicus briefs and we submit a lot of policy statements to governments in the United States and around the world concerning rights of publicity, copyright, and trademark.^[7] We also do the internal legal work required by the organization, so we’re basically the general counsel’s office of a rather large non-profit. Those of us who are IP professors have had to learn an awful lot about non-profit law, which has been a fun adventure.

Could you talk about the legal argument for fanworks? What is the difference between a derivative work and a transformative work?

Transformative works are a subset of derivative works. As a matter of copyright law, derivative works are something that a copyright holder has the exclusive right to make and authorize. But that right is broadly limited by the fair use doctrine. Fair use is a fuzzy category of uses Congress and the courts have judged to be so valuable to society that these uses don’t cause infringement even though they involve reproducing or making derivative works from copyrighted material. In analyzing fair use courts look at a series of factors that include a few things that really favor fanworks.

The first factor really sort of breaks down into two factors. It asks whether a use is transformative and it also asks if a use is non-commercial. A transformative work is one that transforms the meaning, message, or purpose of the underlying work. Some more common transformations of meaning or message would be criticisms or commentaries on an underlying work. But, of course, one need not comment directly on a work to transform its meaning.  And courts have explicitly held that all one needs is a different meaning or message rather than a critical one to constitute transformation.

Commerciality is the other part of that first factor. Noncommercial works are more likely to be fair than commercial ones. For most of their history, fanworks have largely been made in a kind of a gift economy and as an expression of love rather than as money-making attempts. That’s what the Organization for Transformative Works is focused on—noncommercial fan works.

On that first fact factor, both the transformative doctrine and the non-commerciality doctrine tend to favor fanworks. The second factor has to do with the underlying work which is being used. The stronger the copyright in the underlying work, the less likely the use is to be considered fair. And, of course, most of the works that people make fanworks of do have strong copyrights. But courts have said that if you need the underlying work to make your point, they’re not going to care very much about this factor. So while that doesn’t weigh in favor of fanworks falling under fair use, it doesn’t strongly weigh against it, either.

The third factor that courts consider in deciding whether a use is fair is how much of the underlying work is used in the derivative. Fanworks vary wildly in how much of an underlying work they use. But to the extent that they only use a particular character or a particular setting rather than using the same words or the same details that factor will weigh in favor of fair use, as well.

And the final factor is whether the use competes in the market with the underlying work or a derivative work that the underlying copyright holder would likely to create or authorize. In general, it’s possible for non-commercial works to compete in the market with the underlying work but fanworks seldom do. In fact, fanworks typically expand the market for an underlying work. So there, too, this factor favors fair use for fanworks.

Some have argued that fanworks might replace underlying works in the market if they’re very high quality. The argument is that a really, really good fan novel about Harry Potter might be something that someone buys instead of the next Harry Potter book. But realistically there’s a pretty insatiable hunger for additional works in these areas, so there really isn’t going to be this market usurpation that courts are concerned with.

When people think about fanworks as sort of morally objectionable, one of the things they’re concerned with is a sort of unjust enrichment idea. You’re not usurping the market but to the extent that you are benefiting at all from this, you’re sort of taking that out of the hands of someone who should be benefiting from it. But the fair use doctrine doesn’t account for that. In fact, quite to the contrary, it seems to think that fair uses are circumstances where we shouldn’t have to pay. We shouldn’t have to get permission because these uses are just too valuable to require that. And the need not to get permission is particularly important for fanworks. As Rebecca Tushnet famously said, “If someone needs to get permission before writing 500 words about Harry Potter, they’ll do something else.”

Another objection that people sometimes have to fanworks is that they do things that the underlying author wouldn’t approve of. But in fact, that, too, is exactly what fair use is designed to permit. We need fair use because we need to allow people to criticize without getting permission. And so, the more something is objectionable to the copyright holder, the more fair use protects your ability to make it. I think that is a little disconcerting to some but you can see how we get there.

I looked at some of the amicus briefs on the OTW website and one of the things that really struck me was how they really didn’t have to do with fanfic directly. I thought it was really interesting that you wrote an amicus brief for Smith v. Drake.^[8] Could you talk a little bit about how working on copyright on behalf of fandom intersects with wider copyright issues?

It’s useful to note that most of the advocacy work we do doesn’t relate directly to fanworks. And the reason is that there’s actually very little litigation over fanworks. No court has ever found a non-commercial fanwork infringing.

Have people been brought to court over non-commercial fanworks?

Not really. People have been brought to court over things that people might characterize as fanworks. A famous case is Alison Randall’s book The Wind Done Gone, which is a retelling of Gone with the Wind from the point of view of the slaves. The court found that while it was a commercial work—it wasn’t a non-commercial fanwork— the court found that was fair use.^[9] In contrast, there was another case that settled midway through, so we only have an early ruling on it. It was about a fanfilm in the Star Trek genre called Axenar. The court found that was infringing but also found that it was commercial.^[10] I really want to emphasize that it was an early ruling that will never be tested on appeal and more’s the pity. Because I think it’s inconsistent with other rulings both on commerciality and on how the fair use analysis comes out.

That there really isn’t much litigation over fanworks means that what we’re looking for when we engage in advocacy are cases where we think that the outcome of the case could have a positive or adverse effect on how the law treats fanworks. For example, in the Drake case, what we really wanted to talk about there was the transformativeness analysis and how one should not be required to comment on or critique something directly in order for your use of that thing to be transformative. A lot of fanworks engage in commentary or critique that is more subtle than one might expect a court to notice, but that makes them no less important to those who write and enjoy them.

We have been mostly talking about United States copyright law. Does United States copyright have any extra weight?

U.S. copyright law ends up being dominant in these conversations because most of the IP holders who would object to fanworks are centered in the United States. Of course, that’s a vast overgeneralization. There are enormous fandoms for works from around the world. Japanese fandom is legion globally and there are many, many transformative works of Japanese works.  There are people all over the world are doing creative things with things coming from all over the world. But United States law is, in many ways, on the vanguard of addressing the relevant issues. So when we engage in litigation, we find that we’re most needed in the United States. We are also based in the United States and, as a practical matter, have more expertise in United States law. But we do file policy comments globally, particularly when other countries are thinking about reforming or reformulating copyright laws, we advocate for those laws to be fan-friendly. We’ve submitted things in connection with treaties. We’ve urged our readers to advocate for themselves in the European Union. We have filed things in South Africa, Australia, New Zealand, and around the world specifically in the hope of protecting and promoting fan-friendly policies.

I was wondering what your thoughts were on European Union copyright laws. I read your post on how Article 13 (later adopted as Article 17) of the Directive on Copyright in the Digital Single Market is not going to have any immediate effect on fandom.^[11] (Article 13/17 holds service providers responsible for user-generated materials that infringe on copyright. This is largely understood to mean that service providers will have to employ electronic “filters” to catch copyrighted material.)^[12] But does it seem like EU rules are tiptoeing up to regulating electronic speech outside of their borders, as well?

Very much so. They’ve done the same with regard to privacy law and data protection law even more so. I think Europe has taken some pretty bold stances there, wielding the considerable power of many nations banded together. I’m not a fan of the recent direction in the Digital Single Market Directive that Europe has taken. But I think the extent to which they end up being disastrous or merely annoying depends entirely on how they’re implemented at the national level. And usually, these things are not as disastrous as one fears, but not as good as one hopes. It remains to be seen whether the Digital Single Market Directive will be implemented in a way that demands widespread filtering of uploads. If it does, I think that will potentially have a very chilling effect on certain kinds of fan creation—particularly fan creation that involves music, memes, and gifs. These are easy to identify, but it’s hard to find the transformative content in them. Although they are very transformative, it’s hard to teach a computer how to see that.

It’s nuance, which AI is famously not good at.

Right. To the extent that AI is looking at clusters of imagery or sounds, it won’t be good at seeing how those images or sounds are transformed.  The same is probably less true for fanfiction, for text-based works, where the AIs are more likely to be able to distinguish them from their source material. But who knows. We’re depending on a technology that does not exist now and will not exist in a way that functions well until well into the future.

What kind of legal challenges do you anticipate OTW working on in the future or what kinds of things are you looking at now that you haven’t necessarily published about yet?

In the earlier history of the OTW, the question we often got was, “Am I going to get in trouble if I write this thing?” I think increasingly that’s not as much of a question. I think people understand they’re not going to get in trouble if they write this thing.

But now they’re writing this thing and someone is coming along, scraping this thing up from the internet and selling it. And the author says, “But I wanted to give that away. What I really wanted to do was share that with my community. I didn’t want someone to put it behind a paywall and make money off my effort.” That’s a more and more common question that we’re getting now. And to the extent that that leads to litigation that’s something we would care about.

It may not ever lead to litigation because the Digital Millennium Copyright Act allows those fan-authors to demand that their work be taken down from those appropriation sites. But to the extent that it does tee up an issue, it tees up the issue of how much do fan authors own of what they create. The answer is that they own something. Fanworks are copyrighted. Fan authors own copyrights in their work. They don’t own anything in the underlying work, but they own what they made. The question remains how deep that ownership goes. And that’s a question that I think remains up for debate.