Phoenix Rising Report, Last 24 Hours
This is the wrap-up post. It's long, and it contains a rather involved discussion of copyright infringement and plagiarism in the context of fan fiction. (I'm probably going to take paragraphs from my LJ postings and use them in my report to my Department, which is one reason the descriptions of the paper presentations are so elaborate.)
This wouldn’t be a bad time to mention some of the other features of this conference, although they weren’t directly related to me. For one thing, all participants were sorted into four houses: Zodico (the house of music), Pontalbón (house of art/architecture), Bellereve (house of writing) and Lumién (house of storytelling, theater and film). Apparently there were prefects taking and adding points from the four houses the whole weekend, with a House Cup to be awarded at the “Coda Breakfast.” (I attended the breakfast, but didn’t get to stay for the speeches or the awards.) At one point we were handed knitted bracelets in our house colors to wear as a display of “house spirit.” (I’m writing this in the airport, and I’ve still got my bracelet on.)
There was also a Quidditch Classic, played by the riverside between multiple teams. They had a whole set of rules worked out, people running around carrying decoy Snitches, etc. The teams had been formed previously and were named in the programs. I didn’t watch any of the Classic, but I heard it was a blast.
Oh, and iamstarmom asked whether her winning entry in one of the Phoenix Rising Challenges was in the program. I told her that it wasn’t, but upon closer examination that turns out not to be entirely true. There were, I gather, seven different Challenges between August and February, and the winners all of these challenges were listed (along with the URLs of the sites sponsoring the Challenges) on page 87 of the program. Shelly’s was among them. But only the winning entries from the last Challenge (from Fan to Fandom) were actually reprinted in the program. I don’t really understand why this is, although the winners of the first three challenges certainly could have submitted presentations to read their stories aloud at the conference. (I (grumble, grumble) tried to find a venue at which to read my story aloud, and failed each time. This was my only disappointment during the conference, and rather a self-serving, approval-seeking, egotistical disappointment, at that.)
Anyway, where was I? After the Fans to Fandom Keynote, dogstar101, anyaxstrindberg, zsenya and Megan (Arabella) went to visit a palm reader. I offered to get out my Tarot cards to save them the trouble, but apparently I missed the point. (…yyyessss, I do have Tarot cards…)
Meanwhile I went back to the conference. As I think I mentioned earlier, Saturday night was Artists and Authors Night at Phoenix Rising. There were numerous concurrent events devoted to fan fiction authors and fan artists, which included many simultaneous readings of fan fiction – but I didn’t attend any of those, at least partially due to the aforementioned grumpiness. Instead I sampled various other things that were going on; I already told you about the drabble writing I did, and if I had it to do all over again I’d probably spend the whole evening writing drabbles and listening to other people’s drabbles; it was really fun. The other two things I did were to go to one of the “favorite things” sessions, where fans read aloud from their favorite parts of various canon books; at the time I got there they were reading from PoA, and I read aloud the scene in which Hagrid tells Ron to be more forgiving and understanding of Hermione. I love that scene because it shows how wise Hagrid is about important things, despite his apparent cluelessness about others; I also like it that Harry & Ron get the point.
The other thing I did was to attend the last half of the live Fiction Alley podcast. I’ve never even listened to a podcast before, much less an HP cast, and so I was fascinated. It reminded me of the time I attended a live broadcast of A Prairie Home Companion in 1987. There were a number of panel discussions, there were some performances by The Remus Lupins and The Parselmouths, there was audience participation. The last panel, which included (you guessed it) Henry Jenkins and Catherine Tosenberger, among others, was a series of speculations (wishes, really) about the last book. People discussed what their “ideal” ending would be, who would die, what’s up with Snape, etc. My favorite was when the singer of The Remus Lupins took the mike and said that his ideal ending would be a dance party, at which the “mirrored disco ball was shaped like a scar.” That brought the house down.
Sunday morning I had a 1,000-calorie breakfast at the buffet in the hotel (everything they serve in New Orleans has some sort of creole or Cajun twist to it; they were serving “Cajun hash” at the buffet) before starting on the sessions that are paying my way to this conference.
The first session (not the ones that got me here) was The Hero’s Journey by Paula Christensen, an Associate Professor at Northwestern State University of Louisiana. She used a more participatory lecture technique than other presenters I’d seen, and the audience through several different approaches to the hero’s journey, analogizing Harry to each one of them. Of course she started with Joseph Campbell (I can hear at least one groan; you know who you are), whose take on it is still the most compelling for me. Campbell’s stages/elements, according to Christensen are:
· Miraculous origin or birth [the Boy Who Lived].
· Call to adventure [New one in each book]
· Trials and challenges, facing inner demons [orphan, Dursleys,survivor guilt, anger, link to Voldemort, etc., etc.]
· Mentor/spiritual guide [Dumbledore, Hagrid]
· Descent into the underworld, facing the ultimate foe [Happens in every book: Descends to dungeon to get the Stone; Descends to the Chamber to save Ginny; descends to tunnels under Hogsmeade to learn the truth about Sirius; etc.]
· Rebirth and resurrection, attaining the gift of knowledge [Different knowledge in each book].
She also pointed out that while Harry is symbolically reborn in each book, attaining higher awareness as he goes, Voldemort has perpetual inverted rebirth (the horcruxes and his re-appearances) without growth. She went on to discuss Kathleen Noble’s hero within, Nelson’s use application of Jungean archetypes (especially The Magician), the stoic virtues of heroic myth, existentialist heroism (especially the emphasis on choice) and the romantic hero myth. All in all, a very satisfying session.
The next session was But It’s Pastiche (whatever that means): Inspiration, Plagiarism and Infringement in Fan Fiction. The panelists were Amy Tenbrink, a contract, transactional an technology lawyer who has worked for years for the archive sites (she was also one of the principal organizers of the conference), Suzanne Scott, a Ph.D. candidate in Critical Studies, and (you guessed it) Cat Tosenberger. (Where was Henry Jenkins, I hear you ask? In the front row of the audience, where else?) Amy began with a superb 20-minute summary of copyright law, including the best summation of Fair Use I’ve ever heard. (I told her I’m going to steal it.) For those who don’t already know, Fair Use is a defense to copyright infringement for comment, news reporting, scholarship, research, teaching etc. There are four factors (not elements) to fair use, which are:
· The purpose and character of the use;
· The nature of the copyrighted work;
· The amount and substantiality of the part taken; and
· The effect of the use on the market for, or value of, the original.
I was especially struck by her emphasis on the transformative nature of the use; the more the use transforms/changes the original, the more likely it is to be Fair Use. I should emphasize, however, that this is a multifaceted analysis, and that some factors (e.g., the nature of the copyrighted work) would militate against fan fiction rather than for it. Further, it has been held (in a case involving a Seinfeld trivia book) that pure entertainment is not one of the “Fair Use” purposes, whereas commentary (in the form of parody) is. As it currently stands, there are no existing precedents on whether fan fiction itself is a fair use, an no one knows how the courts will rule on it. Typically copyright disputes involving fan fiction have been resolved either by the writer/archive caving in or by the owner changing his/her/its mind about pursuing the matter. But I suspect that it’s only a matter of time. She also noted that copyright law does not care about disclaimers put at the beginning of fan fiction stories (although trademark law does care about that). Amy also spoke of the broad range of author-specific licenses in the area of fan fiction, which cover the whole spectrum:
- JKR: Fan fiction is fine if you don’t make money off it, don’t write porn and don’t attribute it to me.
- George Lucas: Fan fiction is fine if you do it through our web site or publishers; then we own it.
- Marion Zimmer Bradley: Fan fiction is okay within certain tightly controlled limits.
- Anne Rice: No fan fiction at all.
Of course there’s the question of whether any fan fiction author is technically bound by this license, since arguably they never agree to it. (Personally I disagree with this argument. If the author says, “You are forbidden to make use of my work, but I offer you a license to do it under these terms; if you choose to make use of my work, you’ve accepted the offer,” I think that might stand up as a valid agreement – assuming communication of the offer.)
Amy thought there might eventually be something like the statutory “mechanical license” that’s granted to bands doing cover songs, where all they have to do is pay a flat fee, but that hasn’t happened yet.
Cat then went into the academic concept of plagiarism, and successfully distinguishing it from copyright infringement using the theft vs. fraud analogy I’ve always used in my own classes. She went over a number of the points on intertextuality and “recursive literature” that she’d brought up in her earlier paper, and pointed out that the notion of a singular “author” is really an 18th century concept. She also spoke of the difference between an “economy of abundance” and an “economy of scarcity” from the point of view of a copyright owner, especially one in the business of selling large numbers of artifacts (such as one of the big media companies). The “economy of abundance” assumes that the more people who play with or transform your work, the more interest will be generated in it and the more value it will have in the marketplace; whereas the “economy of scarcity” assumes that it’s a zero-sum game, in which any unauthorized use detracts from your revenue. She argued that artistic innovation, though, is ultimately based on not fully respecting the exclusive rights of others.
Suzanne, while failing to define “pastiche” to my satisfaction, posed the question of what standards, if any, should be required of fan fiction authors; she asked whether “plagiarism” is an academic standard that ought not even apply to fan fiction. One very interesting reference she made was to Todd Boyd’s distinction between imitation (which implies mockery, taking, and/or a lack of creativity) and influence (which implies giving credit, acknowledging sources, and making an authentic contribution). She pointed out that the production of FF always begins as consumption of another artifact, that it is collaboratively creative.
A lively discussion followed, in which I posed two questions. First, I asked Amy about the notion of “copy duty” as described by Lawrence Lessig and Jessica Litman, and whether it ought to become law and apply to fan fiction. She answered that there will probably be some sort of mandatory licensing eventually, but not for a very long time. I also asked about stmargarets’s ethical argument (which I properly cited) about the published work being “the child who has left home”; every panelist was emphatically in agreement with Mary on this point.
There was an interesting side-discussion about some fan fiction readers/writers who claim that any reference outside of the canon itself (even to Shakespeare or the Bible, or similarly well-known texts) should be treated as obscure and requiring a footnote. The speaker asked whether we should be responsible for the cultural education of our readers. I said that I want us to be responsible for it. My own fics, as you probably have noticed, are replete with “footnotes” to every source that’s influenced me at all; it’s not because I’m worried about plagiarizing, but because I want my readers to become interested in those works and to seek them out. (All the stuff I cite is really good stuff.) (That’s also my motivation in using citations in my scholarly works, by the way.) (This is a point on which Jenkins and I initially disagreed, but I think I may have persuaded him.)
The last session I attended was Rachael Stiegel’s The Creative Lab: Fandom Infringement of Copyrights and a Proposed Exception for Experimental Use. Rachael is a newly-minted Patent attorney (she’s been a Patent Agent for three years), and had a very interesting take on the whole copyright problem. She suggested using an analogy from (not surprisingly) patent law in the copyright context. The Hatch-Waxman Act of 1986 permits generic manufacturers of drugs to use patented material in experiments reasonably related to obtaining FDA approval, in order to keep the costs of generic drugs down. This furthers society’s interest in having unhindered pharmaceutical research, which (she argues) is thought to outweigh the patent owner’s right. By analogy, she suggests that society also has an interest in unhindered creativity (when it doesn’t actually hurt another creator), and that this interest ought to be seen as outweighing the copyright holder’s exclusive right. She proposed, therefore, an exception to copyright infringement where:
1. The purpose of the use is either:
a. To further appreciate or analyze the copyrighted work,
b. To enable the user to develop or refine his/her craft;
2. The use does not generate a substantial profit for anyone other than the owner of the copyrighted work; and
3. The user refrains from attributing authorship of the copyrighted work to anyone except its actual author; and
4. In the case of a derivative work, the user refrains from attributing authorship of the added material to the author of the original copyrighted work.
This is a truly innovative proposal, and generated a great deal of lively discussion. I said that I thought it unlikely that politicians would agree that society’s interest in “creativity” would outweigh copyright owners’ interests. Erica George, who works with one of the internet and technology law centers at Harvard Law School, said that there are a number of parallel efforts going on now and that developing public awareness through fan effort would be a good beginning. Henry Jenkins (did I mention he was there?) recommended a “judo approach,” in which the industry itself could be persuaded that its own interests would be furthered by clarifying such an exception. He pointed out that the electronic gaming industry has been extremely receptive to transformative works by consumers, and that only the music industry is completely recalcitrant on this point. (Indeed, most other media companies say they wish to avoid the pitfalls of the music industry in this area.)
Afterwards I played hooky and went to an exhibit at the New Orleans Museum of Art: Femme, Femme, Femme: Paintings of Women by French Artists in the Late 19th and Early 20th Centuries (or something like that; I don’t seem to have the program with me here in the plane). I must have been in my “sensitive angst writer” mode, though, because the first third of the exhibit, which pictured various life cycles (birth, marriage, death) had me in helpless tears. I got a grip on myself when I encountered later pictures, which were more about work and place in society. It was a nifty exhibit.
Then I took the trolley back to the hotel, and met Jo and Anya (and Dan, whose online name I forget) to go for Thai food in the French Quarter. (“Thai food in the French Quarter???” I hear you bellow. Yeah.) It was excellent. Jo and I had a very long discussion about our own different ways of attacking fiction, and how our personal histories had affected those strategies. Really, I do have to read her stuff now. (Can’t read Anya’s until I either (a) finish or (b) abandon my own Snape story.) Then I said a sentimental, hugs-and-kisses goodbye to the two of them and got a taxi back. Mary, I can’t thank you enough for hooking the three of us up together; this conference would have been much less fun without them. (Valerie, I miss you anyway.)
At the hotel Sunday night they had a Masquerade Ball, at which I got several pictures of great costumes which I’ll post as soon as I can get ‘em developed. I couldn’t stay in the ballroom itself for too long, though; music was too loud and the dancing crowd was much younger. I struck up a conversation with some attendees from a Southwest Airlines conference who were astonished at the apparent Halloween Party atmosphere and wanted to know what the heck was going on. Then I started another conversation with a very nice woman of my own age who had all sorts of interesting things to say about the beta process. After about twenty minutes or so, it turned out that she’s the woman who posts on Viridian Dreams as Nancy in Chicago, with whom I’ve had some pleasant interchanges. What a nice surprise!
This morning everyone was looking a bit bedraggled. (Some were undoubtedly hung over, but at $7.50 per drink, I didn’t have that problem.) Many were still doggedly in costume (including the Malfoy family, which I don’t think has broken character the entire weekend, and the women in the great home-made Beauxbatons uniforms). I talked for about ten minutes with Amy Tenbrick, mostly consisting of gushing praise for how well the conference was run (really, it was nearly seamless, everyone had a blast, and there were precious few conflicts). I also asked about Terminus, the Chicago conference taking place in August of 2008 – specifically I asked about the call for participation and the submission schedule. I gather they’ll start accepting submissions this June, and will continue accept them through December or January.
As I type this last paragraph (the battery dying on my computer), my plane is on its last half-hour of the trip to Providence. I’m a little sad at the end of Phoenix Rising, which is a sure sign that I enjoyed myself. The best part was unquestionably getting to know Jo and Anya; the second-best part was having my story in everyone’s hands (even if most of them didn’t know it…); the third-best part was experiencing all the raw enthusiasm and belief this canon has stirred in all these people. Saturday night, at the Fans to Fandom keynote, Melissa Anelli said that ten years from now “we’ll all be telling our kids what it was like to live in this brief moment when the story wasn’t finished, when we didn’t know how it was all going to come out.” When the possibilities were wide open and we got to argue about them. And I got to experience it in the flesh. Thanks again, Mary; it never would have happened to me if you hadn’t sent me that e-mail last winter.