from the think-fan-fiction-is-just-about-teenage-girls? dept
Tell people that fan fiction
is an important form of political speech that deserves protection,
and they'll roll their eyes. The stereotypical fanfic writer is a
teenage girl who writes misspelled stories about vampire love—is
that kind of work really worth anything? Maybe there used to be
folks like Shakespeare, Dante and Virgil who wrote stories about
characters someone else invented, and yes, those stories changed the
world, but let's face it: Vampire love. There's just no living that
down.
Which makes it all the more
mind-bending to learn that a man we respect, James Madison, Father of
the Constitution and fourth President of the United States, wrote a
story about a character he didn't create. Yes, the same man who
wrote the Bill of Rights also wrote a fanfic. Vampires.
John Bull, the character
Madison appropriated for his story, was created in 1712 by John
Arbuthnot. Though forgotten today, Arbuthnot's satirical allegory
about the War of the Spanish Succession, The
Law is a Bottomless Pit, was very popular in its time. John Bull
represented England, while other characters represented the rest of
the nations involved in the war.
There was no fanfiction.net
in Arbuthnot's time, but that didn't stop his readers from spinning
off their own stories and comics which also used John Bull as a
characterization of England. Over the course of a century, John Bull
transcended his origins and became Britain's version of Uncle Sam.
To the British he was a hero; to the American colonists, a villain.
Enter James Madison. The
retired president was concerned over the growing rift between the
North and the South. To give voice to his opinions on how the matter
could be resolved peacefully, he wrote a short allegorical story,
Jonathan Bull
and Mary Bull, wherein a character named "Old Bull"
represents England, and his descendants "Jonathan Bull" and
"Mary Bull" represent the North and South respectively.
From a modern perspective
the story is nothing much to read, but it does raise a rather
intriguing question. Why fanfic? What made Madison decide to use
existing characters to make his point rather than inventing his own
characters like John Arbuthnot did for his own political allegory?
And isn't using other people's characters without permission
copyright infringement?
The easiest way to tackle
these questions is to tell you an allegorical story. There once was
a comic artist, "Jim M.," who wanted to comment upon the
important issue of CIA torture. To make his point, he drew a three
panel comic strip. In the first panel, Captain America is taking
down a fanatical Nazi commander who tortured prisoners of war for the
good of the Fatherland. "You will be tried for your crimes,"
he promises. In the second panel, Jim M. draws Captain America
standing next to President Obama, who is casually observing that
although the CIA did "torture some folks," the lapse can be
excused because the torturers were patriots who loved their country.
In the third panel we see Captain America's shadowed face as he walks
away from a burning American flag.
Suppose Jim M. had created
a new character, "Bob the freedom-loving American G.I." to
use in place of the copyright and trademark-protected Captain
America? It wouldn't have had half the impact, would it? Captain
America's strong connection to American patiotrism and historic stand
against the oppressive Nazi regime makes him an ideal character for
Jim M.'s purposes. As for Bob the American G.I., the audience knows
nothing about him. Even if Jim M. did try to provide Bob with a
heroic backstory, readers would have to wade through 200 pages of
unrelated material before they even got to the part about the CIA
torture. Without the use of Captain America, Jim M. wouldn't be able
to get his point across.
For Jim M., effective
political speech requires the
use of a popular icon, not an unknown character. Unfortunately, Jim
M. has now opened himself up to a potential copyright lawsuit. If he
chooses to defend his fair use rights, it will cost thousands of
dollars in legal fees. If he loses, the damages could be even more
grave.
James Madison didn't have
to worry about the legality of his political speech because a) John
Arbuthnot was Scottish and the U.S. didn't recognize international
copyright laws at the time; b) John Bull had already entered the
public domain; c) the creation of derivative works (such as
fanfiction) had not yet been criminalized. It's that last point that
concerns Jim M., because it means that he can no longer be sure that
the law will protect his freedom of speech. It may, or it may not;
either way, it will cost him thousands of dollars in court to find
out. Compare that to the situation in Madison's day: If Madison had
wanted to write an allegory where Captain America tries to make peace
between the North and South, he could have done so without any fear
of repercussions. Before derivative works became illegal, creators
had the freedom to make use of the most appropriate character for
their commentary without facing any consequences.
So what about Janice, who
writes a five page long fanfic in which Edward and Bella visit the
9/11 site and wonder about the direction America is heading between
passionate vampire kisses? Being born in 1901, Edward lived through
WWII, and it turns out that he has some surprisingly insightful
thoughts about the state of America today. The story concludes with
Edward, who is telepathic, overhearing the hateful thoughts of his
fellow visitors toward a man in a turban standing nearby. But Edward
reads the man's thoughts, and learns that he is praying for the
families of the victims.
Could Janice provide the
same insightful opinions without using copyright-and
trademark-protected Edward as her mouthpiece? Yes, but not as
easily. It would be a tough challenge to develop Edward and Bella as
rounded characters, then show Edward's unique powers and lifespan,
all without shifting the emphasis away from the issues she wants to
explore. Instead of writing a story about the impact of 9/11, Janice
would end up writing a story about why her character has supernatural
abilities.
Someone skeptical is
saying, "Yeah, but do fanfic writers actually write stories like
that?" Yes, absolutely! Fan creators make use of their
favorite characters to propound their opinions on issues from racial
equality to stopping
SOPA. In the introductions to such stories, you will often hear
the writer explain, "I thought such-and-such a character would
be perfect for dealing with issue X because..." These writers
have an innate understanding that the use of popular icons allows for
powerful forms of expression that would be difficult to achieve by
other means. Yet these same writers would have a very hard time
proving that their creations are fair use before a judge.
Not that it matters,
because such cases almost never go to court. Fair use is too fickle
to be relied upon as a defense, and the expense of proving a point is
too costly for the average person to bear. What we are left with is
a situation where rights holders can basically censor political speech
at will. Just imagine if John Arbuthnot had been able to order
Madison to take down his story because he disagreed with Madison's
political views. The President was deeply in debt at the end of his
life, and like most of us, he could hardly afford an expensive loss
in court.
Of course, some would argue
that the ability to censor speech is a good thing. After all,
suppose that an anti-Semitic fan wrote a story set in WWII where
Edward joins the Hitler Youth? If it weren't for the laws against
derivative works, the argument goes, Stephenie Meyer wouldn't have
the right to take down the fan writer's objectionable ideas.
But it would be a mistake
to assume that such censorship powers will always be used for good.
Take for example the popular book, "The Education of Little
Tree," written by Asa Earl Carter, a now-deceased member of the
Klu Klux Klan. Suppose that a fanfic writer decided to have Carter's
main character, Little Tree, befriend an African American boy as a
way to express support for the idea that all men are brothers? The
same power that gives Meyer the right to take down anti-Semitic
speech also grants racists like Carter the ability to discriminate
against the minorities they despise.
Most of us support freedom
of speech, but for copyright holders, the right to censor views they
disagree with has been all but enshrined as a legal right. What
would happen, I wonder, if Jim M.'s Captain America cartoon went
viral? Would his work be praised by Marvel, or would they send him a
cease and desist letter? Would he crumple quietly, or fight it out
in court for years?
"Yes," the
critics say, "but we could avoid this whole problem if people
just wouldn't write fanfics in the first place. Do your social
commentary without using other people's IP!" You hear that,
James Madison? You'll have to find another way to stop the Civil
War. We have lawyers and they don't like how you're expressing your
"creativity."
Madison cautiously
approved of copyright, but I doubt that he suspected it would be
used to chill free speech like his story 200 years later. The
President clearly knew that derivative works can provide a compelling
way to make a point, and as the author of the First Amendment, I'd
like to think that he believed that fanfiction should be a protected
form of expression. It's a shame that such a valuable means of
public discourse has been almost criminalized today.
Filed Under: creativity, culture, fan fiction, james madison, john bull, originality