seekingferret | Panel Report

"Ethical Norms in Fanworks Fandom", the first panel I ran at Fanworks Con, is a panel I originally developed for Discon. As I got tied up with Mystery Hunt I lost track of program development and it ultimately ran as "Fanwork Factions", to my mild disappointment. I think it's really interesting to see that evolution.

My developed panel description:

Fanworks are created by relatively small, self-selecting communities that have developed our own ethical standards about how and when elements from other peoples' work, fan- and otherwise, can be incorporated into your own. These rules often overlap, but are not congruent with, copyright law. How are these community norms created, and how are they enforced

The Discon panel "Fanworks Factions":

Fanfiction and other fanworks are well known for creating space for the stories that aren’t-quite-told in canon. Communities have developed their own ethical standards about how and when elements can be used from other peoples’ work, but we have also seen significant ship wars and the rise of purity culture. How are these community norms created, and how are they enforced? How does one stay afloat amidst the shifting tides of morality, taste, and social custom?

So whoever developed the panel idea further was interested in the final clause of my description, 'how are they enforced?' and took that to its extremes. I attended the resulting panel and I thought it was interesting but occasionally frustrating. Given the slant of the description, the panelists spent a lot of time decrying teenagers who didn't understand how important the freedom to write smut was, which I thought was kind of silly and patronizing, as well as misunderstanding power dynamics. During the Q&A I pushed back a bit by asking them if they understood that the same tools that are used to harass smut writers are also the tools that we use to try to drive racist fans out of our spaces.

Anyway, I ran the original panel at Fanworks, which is much more focused on what are the communual norms that we agree on and why they exist, rather than on how do we use social pressure to punish fans we don't like. I talked about copyright and the idea of derivative works and transformative works, and why the OTW idea of fanworks as transformative works is useful but limited and so fandom in practice only takes advantage of it when it's convenient and otherwise adopts extralegal rules for derivative works. I presented three models for fandom's approach to copyright- the It's All Transformative model, the It's Illegal but I Do It Anyway model, and the It's Not Illegal Because the Copyright Holders' Inaction is an Implicit License model, and then the audience argued with me for a while about whether the second two models are essentially the same, which was a good, clarifying argument to have. Then we looked at a bunch of rules that fandom has for when you can make derivative works and we talked about the logic behind them and how sometimes they seem counterintuitive and sometimes they make logical sense.

I did a little soapboxing at the end about why I think that cancelling and other forms of social pressure is sometimes appropriate in a fanworks community context, as long as we are careful and impose limits on its use. In general my line is that white knighting is the moment when canceling and call-out-ing goes from being an appropriate tool for maintaining communal norms to being a tool for toxic harassment.

Here is the slideshow I used Ethical Norms slideshow

Flat | Top-Level Comments Only

During the Q&A I pushed back a bit by asking them if they understood that the same tools that are used to harass smut writers are also the tools that we use to try to drive racist fans out of our spaces.

So curious about their response!

I would definitely have rather been in your panel!

Their response was something like "Well, obviously we don't mean that we're against calling out racists." And I don't think they're lying, I just think it's very easy to get focused on one particular social harm and not see the way the whole ecosystem works, and I think the way the panel description was written pushed the panelists in that particular direction. The way the internet can amplify things is dangerous, but it's also important that we have ways of getting bad actors out of internet communities, and those things need to be balanced. My solution is to focus on the small community of people I actually interact with and not treat all of fandom, or even all of a particular fandom, as a single community. It's not the only solution, and it's imperfect, but mostly it works for me.

There's also this whole thing where people talk about antis as if they were a new thing and not a problem that fandom has been constantly dealing with for ninety years. That bugs me.

I really appreciate your thoughts and agree with you about keeping our focus on our own social circles. Being kind to the people you actually interact with and making sure that you look out for each other does seem to be the best way.

There's also this whole thing where people talk about antis as if they were a new thing and not a problem that fandom has been constantly dealing with for ninety years. That bugs me.

Haha seriously!

Thanks for the slides & the book rec! I'm curious: did you guys get into how norms have changed over time or how they vary between different fandom groups? I find those differences/changes in norms fascinating & often places of useful friction within fandom(s).

Also, based on your description & other comments here, I think we're on the same page re: call-outs, but I'm curious if you've read Emily St. James' interview w/ Isabel Fall, which IMO is one of the more interesting/nuanced pieces on when cancelling gets toxic & which I think generally underscores your white knighting as the turning point theory. It also identifies my other concern about unchecked social sanctions, which is that they can easily be used against the people they were initially conceived to protect (which is why limits & care are so necessary).

We did talk about norms changing and being different in different communities- that's sort of why each of the slides where I listed norms, I had the question at the bottom about if anyone disagreed with me. I think the one that sparked the most conversation was whether or not you need to ask a fanfic writer before making fan art of their fic- people had different intuitions about that.

I think I had read the Isabel Fall interview at the time it came out, but I reread it now and I agree that it gets at some really important problems. Annoyingly, I mostly see that interview linked around as a way to harass some of the critics of Fall rather than as a discussion piece about these complicated and difficult questions about community and self-expression.

Yeah, unfortunately many reactions/discussions of the article often strike me as having learned nothing from the article, but I think the article itself is excellent & worth reading & thinking about in relation to one's own communities.

I find the norms around making fanworks based on fanworks to be fascinating because there's (to me) an inherent contradiction with the position "we make fanworks based on canon without permission but you can make fanworks without fanworks without permission" that never-the-less comes out of a deeply community centric concern. It's one of the most fascinating set of contradictory norms to me -- cool to hear that you guys touched on it!

Yeah, I talked a bunch about that apparent contradiction. At one point I said something like "If the idea is that you don't need to ask authors because they're not part of our community, but you do need to ask fic writers, because they're part of our community, then if you want to write Temeraire fic do you need to go "Hey Naomi, can I write fic?" since she is in fact part of our community?" And someone in the audience said something like "Of course not, because she might be the copyright holder but the derivative rights to the books are all tied up in her contracts with her publishers, even if she wanted to authorize your fanfic she couldn't do it without a bunch of legal wrangling." That's also part of why I find the 'implicit license' theory so interesting, who exactly are they imagining is the entity that is deciding not to sue them?

Totally! And it's interesting for me from a professional side, since a huge part of what the companies I work for do is footwork to determine who owns the rights to various archival footage/stills/audio & how to license/get permission/fair use. The way fandom talks about & understands permission & fair use is very different from my professional experience. Granted there is a very specific difference in that fanworks are not (usually) made for profit, unlike what we make at work.

Still, it places me more in the second camp in that ... eh, fandom is doing some jaywalking. I can appreciate the OTW-style push to legitimize fanworks, but I don't necessarily think that what we do is always legit under current law (which itself is flawed).

(Also side rant: fair use is an argument you make in court. You can't know a specific usage is definitely 100% fair use until it's been litigated. You can get a lawyer to write an opinion letter saying: "based on fair use doctrine & prior ruling we think this would be considered fair use if it was brought to court" but you can't say 100% for certain until a ruling is made in that case.)

(This is part of why the vid as argument paradigm bugs me: to me it's shoehorning vids into an ill-fitting container in order to make a legal argument about vids as a whole being fair use. The thing is ... I don't actually think all vids would wind up winning w/ a fair use argument if a claim was brought up against them, especially wrt the audio. But positioning a vids as arguments sets the stage for a fair use claim.)

I wish you'd been at the panel. Everything you say is exactly the point I was trying to get at.

I don't know that I would have been great support at the panel, I probably would have had lurker supporting you in e-mails energy. A lot of convos around fandom legality I'm at the point where I don't want to get into it with strangers even though I find it fascinating.

Another question I thought of though: did you guys talk about the shifting norms wrt fandom as a gift-economy vs paying for fanworks. That's something that I've seen changing in the past few years that I find interesting in a "someone's jaywalking in a place I wouldn't jaywalk, but I admire them for going for it"

We didn't talk about that, no. It would've been interesting. I think I'm so far away from that part of fandom that I don't really think about it, but also yeah, I do find the Patreon for Fanfic model fascinating. And also I think that gets into my Characters Before Copyright end tangent, where fanfic writers in 18th century Germany were in some cases making more money than the original writers they were inspired by.

You have your own File 770 tag now, congrats on making the big time! :P

Eek!

Thanks for letting me know!

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