User-generated Content, Digital Labor, and Collaborative Authorship
Rebecca Tushnet: Fanworks,
Fair Use, and Self-Actualization Through Transformative Expression
Title assigned a few
months ago is a little misleading because I actually wanted to take the
opportunity to talk about the Copyright Office’s recent report on moral rights, though I’m happy to talk about anything
fanwork related during the panel discussion and Q&A. I was one of the founders of the nonprofit
Organization for Transformative Works. OTW runs the Archive of Our Own, which hosts
noncommercial transformative works by fans of existing works, of people, or
really of anything about which one might create new art. From our recent fact sheet I can
tell you that we have over 1.2 million registered users and 4.7 million
fanworks, as well as tens of millions of visits per week. “Our open-source code
was built from the ground up by fans for fans…. Our users are fans of every
sort—teenagers and grandparents, first-time writers and professional
authors—from all around the world, creating fanworks” for nearly 32,000
different fandoms. From the beginning,
it was a priority to be ad-free and noncommercial, not under the control of
advertisers. Instead, the priority was authorial
control: AO3 was designed to give creators the ability to post and edit their
works flexibly, to orphan their own works to preserve access to them without
connecting them to the author, and to exclude search engines or non-Archive
users from reading.
One of the most
distinctive features of the Archive is the curated folksonomy used to tag individual
works: “Users are able to tag in whatever format is most useful or natural to
them, and our team of over 350 tag wranglers link these tags together into
easily searchable concepts.” If you
misspell Harry Potter’s name—or put it in kanji—we’ve got you covered. Creators can use tags to allow other users to
find exactly what they want to see—or to exclude exactly what they don’t.
“[U]sers can easily create specific searches, including all Sherlock Holmes
works posted in 2018 that are exactly 221 words long and Lord of The Rings/Game
of Thrones crossovers that don’t include either Frodo Baggins or Arya Stark.” “Related
concepts are also linked: Space Opera and Space Battles are both found under
the metatag Outer Space, along with other related terms like Astronauts,
Spaceships, and even Space Whales.”
Fanworks provide incredible
benefits in literacy, sexuality education, language learning, community
building, and other good things that come from making something you love and
sharing it with other people who might just love it too.
On the content v.
tech distinction that Maria Strong made: we consider ourselves content folks
who use tech. But importantly, we rely
on fair use: our basic purpose is to host transformative noncommercial works. Gives
us a particular perspective on various copyright controversies. For example, recent Copyright Office report
on moral rights, which you’ve just heard about.
The Office did a lot of good work pulling together the legal background
both internationally and in the US, covering many issues that go beyond
copyright into other regimes that affect authors. A moral right of integrity that would protect
authors against uses of their works they found offensive would be incompatible with
US fair use and the First Amendment and the Office didn’t suggest any basic
changes to that system, to the Office’s great credit.
It is definitely
true that norms of fairness matter a lot in authorship, including attribution
in many circumstances—but not necessarily in the rigid categories formal law
might use. For example, fans regularly describe
authors of books, but generally identify performers of songs rather than
songwriters. More generally, attribution practices in and out of fandom are
highly context specific—what works for one group might not work for
another. Hollywood screenwriters have an
arbitration system for assigning credit that is often needed because fights regularly
break out. Similarly, the Office pointed
out that, “in legal writing, attribution norms for academic articles are quite
rigid, whereas practicing lawyers routinely copy without attribution ‘the form
and language of legal instruments.’” Attribution turns out to be the kind of
inquiry that isn’t well suited to the American legal system, because modern
copyright statutes and regulations tend to make big, specific lists of required
information. The Office wisely
recognized that antiplagiarism norms work about as well as anything can work,
and that the context of attribution would be essentially impossible to write
without showing that there was a noticeable unmet need for new protections, the
Copyright Office has just suggested that the federal Lanham Act can &
should be used against unattributed copying of digital works, in defiance of
the Supreme Court’s decision in Dastar
and its own stance on digital first sale.
[I should note I think the Office is completely right in saying (1)
§43(a)(1)(B) claims should survive Dastar
where false attributions are material to consumers and (2) Dastar applies to in-copyright works as well. It’s just disingenuous at best in endorsing a
distinction between nondigital and digital copies that does not make sense of
the Supreme Court’s interpretation of “origin,” especially in light of the
Office’s (correct) position in discussions of first sale that a digital copy stored
on a computer is a reproduction. The “origin”
of a digital copy is the host computer, and maybe stretching it could be the
sending computer, but there is a physical instantiation and that instantiation is
what the Lanham Act covers in “origin” under Dastar. Specifically, the
origin of the creative work contained in that copy is not the same thing as the
origin of the physical copy, no matter whether the copy is on a general-purpose
computer, a videotape, or a DVD, and thus failure to attribute the origin of
the creative content is not actionable under §43(a)(1)(A) per Dastar.]
It also stated that Congress
might want to consider amending the Lanham Act to create new causes of action
to cover false representations regarding authorship of expressive works, even
without a showing of harm to consumers. The Office suggested amending the
Copyright Act to provide damages when a defendant knowingly removed or altered
copyright management information (“CMI”) with the intent to conceal an author’s
attribution information even if there was no intent to conceal infringement,
and possibly even adding a federal right of publicity. In addition, the Office suggested some
changes to the more limited Visual Artists Rights Act.
Aside from the
suggestions about VARA, the rest of the Office’s ideas are a classic case of proposing
to use a missile against a gnat—likely to the detriment of small and
noncommercial creators, who are the ones who can neither afford to bring claims
nor fight claims brought against them.
And the specific suggestions lack exactly the kind of context
sensitivity the Office acknowledged was needed—for example, the proposed CMI
provision on its face makes it illegal for an app to remove identifying
information of people submitting anonymous videos of police brutality—and if
you think that enterprising prosecutors wouldn’t use this law against the ACLU,
you haven’t been paying attention. [The
CO says that the intent requirement would mean that automated removal wouldn’t
be actionable unless it was designed to remove authorship information … but anonymous
reporting apps are designed to do that. And for what it’s worth, the complaints
the CO reported receiving about removing authorship information were mostly
about automated processes—the proposed remedy doesn’t even match the thing
that’s being complained about.]
It’s also worth
pointing out the solution that the Copyright Office didn’t suggest for congressional intervention: although its
discussion of authors’ rights mentioned attribution and integrity rights
secured by labor law and collective bargaining, both in the US and elsewhere,
the Office didn’t suggest that strengthening authors’ positions could be
achieved by strengthening the position of workers, even though the most
vulnerable authors are labor and not management. The
problems the Office identified in securing attribution for certain groups, like
freelancers, are labor problems—authors after all make copyrighted works, and we should not allow the
concept of the “work” to disappear as if authors were mystical beings with no
connection to other forms of labor, other forms of production, that do things
in the world. Our desire to highlight
the process of creation was in fact one of the reasons that we called our
nonprofit the Organization for Transformative Works: whether made for profit or
not, creative works are the product of labor.
Remembering the inherent dignity of that labor, and its value whether or
not there is a market for the resulting creativity, is a goal that the OTW
shares with the Copyright Office.
Internet Memes, Fanworks, and Copyright’s Authorship Challenges
involve © works; one opinion expressed: the public “owns” the meme because the
public authors the meme even if not the underlying photo. Fox defended an infringement case juxtaposing
9/11 and WWII images—court didn’t like the fair use defense b/c didn’t see the
transformativity, but it turns out that the range of “memes” is very
broad. Knowyourmeme has no
definition. When Trump (or a Trump fan)
adds CNN’s logo to a clip of wrestling so that it looks like Trump is beating
up “CNN,” that’s what’s adding the meaning especially after it’s been shared by
Trump himself. Similarly, Pepe the Frog became a white nationalist symbol and
created contests over ownership w/initial artist and those who altered it. Gab
now uses a frog logo and claims that frogs have been symbols of free speech for
a long time (narrator: they have not), and it’s a reference but not all that
similar to Pepe. Then the distracted
boyfriend meme, which comes from a stock photo with a © owner, who is fine with
most uses but not w/objectionable ones (which may be censorial). As the distracted boyfriend meme develops,
responses to it/reworkings of it are based on transforming the meme rather than
on the photo alone, which has become subsumed into the meme and the idea of the
The internet thus
exposes that the mastermind narrative of single creation is wrong. We knew that
but dealt with it mostly by contract, and then we have this control test for
noncontractual situations but it still wrongly assumes that there is a “boss”
in control of everything. When you don’t have contracts, when you don’t have
lawyers, we don’t know what we’re doing in terms of ownership. Garcia v.
Google: opinions don’t make sense internally and are conflicting all over the
everything worse/more exploitatitve: Swedish company used distracted boyfriend
meme for job searching and ad regulator called it sexist and said it couldn’t
be used in ads. There is a pending case against a MAGA poster by Pepe’s
original creator Matt Fury; there’s a fair use argument but also the defendant
argues that Fury abandoned the © (which is not a thing). There’s a lot of unsettled territory here.
Google Open Source and Collaborative Authorship
Writing a casebook
on open source legal issues: opensource.google.com/docs/casebook: you can send
us edits or additions in a GitHub pull request.
Current joint authorship standards give equal rights to all
authors. Some projects list all
“authors” giving them shared control. Some may have 100% consensus, but for a
growing project that can be unsustainable, and some institutions may not want
the potential liability/disputes that comes from open source authors’ potential
for contestation. Current doctrine
(Al-Muhammad etc.) looks for a mastermind—important contributions can still
avoid being authorial. Court was concerned about discouraging future
editing/feedback if joint authorship was a possible consequence. Creative
control/direction mattered, versus value of contributions and impact on final
version. Spike Lee had the control (although it was a work for hire) and the
court found that determinative. Other
jurisdictions also use editorial control over final piece as part of the test,
but with more focus on intent to be co-author.
Control can be evidence of intent, but intent could also be evidenced
by, e.g., registering the © in a person’s name.
Clarity can come
from legal agreements: two popular mechanisms, developers’ certificate of
origin (Linux) which doesn’t say anything about retaining © but does grant an
explicit license. Is everyone a joint
author? Contributor license agreement:
says that © stays with contributor but they grant a license. That makes it clear that people aren’t
considered joint authors. More
light-weight approaches: root license of a project is used to cover
contributions. Can be used to imply effects on individual contributions;
sometimes licenses say “if you contribute, you do it on these terms.” The
Stuff case about contributing special effects to a larger film: helps
explain the effects of an implied license to use a contribution.
Should User-Generated Content Be Compensated?
UGC: just about
everything you find on the internet. Childish
Gambino’s This is America was a canrivalesque commentary on police
brutality, fetishization of black performers, modern-day minstrelsy. People
responded w/, e.g., This is Nigeria: commentary on police brutality, corruption,
poverty, Boko Haram, and other Nigerian issues. Similar music and choreography
but different lyrics (both set in warehouse).
Why do we value things like fan fiction?
People get to see themselves where they don’t get to see themselves in
mainstream works: LGBTQ people, people of color. Challenge racial and social
assumptions of mainstream works; challenge the monopoly on cultural production
of large producers. Can also maintain the cultural relevance of works, such as
maintaining interest in the Star Trek
universe. Satisfies demands for
variation and personalization, rather than works manufactured for a huge
audience. Democratizes creativity—authorship is diverse and diffuse. Meme authorship can often be indeterminate.
Content ID: used
algorithmically mostly for commercial content.
400 hours to YouTube uploaded per minute. Fanmade videos for Harlem
Shake were matched to the song, allowing the song © owner to generate millions
of revenue with no allocation between the music and the video created by fan
labor. Under 1% of Content ID matches are disputed. Fair use can’t reliably be done by
algorithms; Content ID is black box governance, unaccountable—even when the
uses removed or monetized may be perfectly lawful. Expands scope of © by making it difficult for
users to rely on exceptions like fair use.
Locke and labor
theory: just reward of labor should extend to fan creations that are
monetized. Eric Posner etc. have argued
that not just UGC but our labor online, clicking and producing valuable data,
should be understood as compensable.
provision: protects UGC made by an individual, though there’s usually more than
one author. Also protects UGC only when
© subsists, which bakes in originality.
Requires noncommerciality—no pro-rated advertising revenue. Also bars anything with a vague, broad
“adverse effect, financial or otherwise” on the © owner—that could include
offending the original © owner.
Should users be compensated? The labor
of users should be recognized and respected, and possibly compensated. But
commercialization is part of the fair use inquiry; it may weigh against fair
use. Commercialization may result in
reduction in expressive diversity: anticipation of paid markets may affect
content and willingness to participate/be spontaneous in creativity. Distinguishing when compensation would be
paid would require resources, negotiation in allocation between different
owners. Right now it’s 100% to the original claimant, but other points on the
spectrum are possible. Don’t just assume that everything with a match should be
100% monetized by the © owner. We could
ask users to categorize their works to claim a share; this would allow more
information and an algorithm could at least look for percentages/set things up
for human review.
Q: fair use is
important; from litigator’s perspective, one downside is expense to
determine. Oh, the Places You’ll Boldly
Go! was found to be fair use on summary judgment, but not at the MTD stage
which was 1½ year earlier. Is there a
way to get to fair use faster? Market
harm may require discovery—that’s the most expensive part of most lawsuits.
RT: sadly, not a
lot. There are uses that are fair as a
matter of law, including parodies. Big
data, purpose-transformation uses are for better or worse somewhat easier to
identify as fair use as a matter of law.
Sometimes you are going to have to evaluate the transformativeness of an
individual work. [We can have rules that
help, like the Second Circuit’s rule that you can’t avoid a fair use finding by
offering a license for something that is
in fact transformative—that helps draw the sting of some market evidence.] Small
claims: 40% of Americans can’t come up with $400 for an emergency. A “small claims” court that allows $30,000 in
statutory damages is not a small claims court. It’s just another way to harass
individuals. [I forgot to add: best
practices in fair use for different fields—also very helpful.]
nonprofits like OTW/EFF.
Geddes: Canadian UGC
exemption needs some time to develop.
Education is also important. People want rules like “30 seconds is ok.”
do want rules: are 3 lines of code ok?
Depends on what the 3 lines are!
proposed 1202A. The reason we made it a
new provision is b/c it’s narrower and specifically exempts criminal
enforcement. The only person who could
content it will be anonymous.
RT: Disagree. The statutory language is “any person injured
by a violation,” and the police will say they’re injured by the inability to
investigate the circumstances under which the video was taken further. The injured person doesn’t have to be the
author (or heirs) under this proposal. There
is a long tradition of (mis)using civil awards to silence speakers, e.g. NYT v.
Sullivan. The proposal does not exempt
information submitted by someone who wants to be anonymous or who doesn’t know
or care about stripping of metadata [nor does it limit enforcement to the
author, which would also be a potential fix, though I still don’t see the
evidence that an additional cause of action is needed].
Q: software should
just be patentable, not copyrightable.
Richardson: the law
says copyrightable and she’s ok with that.
Q: memes &
defamatory content. There are a lot of really awful Helen Keller memes out
there. What should happen when there’s a
historical figure & derogatory content.
Lantagne: a lot of
times people bring © claims that should be more personal tort based. She hasn’t come across non-© meme cases, but
she wasn’t specifically looking for them.
Unless publicity rights outlast death, there are few remedies for the
porn is an example of where © was deployed even though it wasn’t intended for
those situations; you shouldn’t need to register an explicit photo to deal with
the problem of revenge porn, and new laws and platform policies are recognizing
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