Kimberly Hirsh, PhD

introducing other panelists in “The Money Question”

Copyright law is designed to incentivize creativity, “to reward authors for being creative.”

Lawyers think about financial repercussions of creativity/copyright, but fans tend to not focus on finances as reason for engaging in fanac, esp. fic.

Copyright law suggests that people require the financial incentive to be creative, but fans demonstrate there are many other motivations.

If we know people will be creative with motivations other than financial, then what is copyright law accomplishing if the incentive assumption is flawed?

Is copyright blocking creativity because it is too restrictive?

If $ enters a space where previously it wasn’t part of the motivation/incentive structure, how do copyright considerations change once $ is introduced to the space?

When fans demand compensation, it gets stickier because they are creating within the world of somebody else’s creation. Fanworks, however, are protected by fair use, “a really messy doctrine,” with market harm as one of the explicit factors evaluated to determine if it’s fair use.

We want to protect public good with copyright, not private gain. If you’re making $, you can presumably afford to license intellectual property.

Copyright exceptions for news reporting & education, for example, promote the public good.

Fair use doctrine doesn’t provide ability to exploit EVERYTHING, some things are reserved for creator.

If you aren’t making $, copyright holder has a harder time arguing you’re affecting their market/bottom line, but if you are charging, now it looks like you’re siphoning $ from copyright holder.

THIS DOES NOT MEAN EVERYTHING DONE FOR FREE IS OKAY UNDER FAIR USE DOCTRINE. Some free stuff is still copyright infringement! eg music & video piracy

But also NOT EVERYTHING DONE FOR $ IS NOT FAIR USE.

“Keeping things noncommercial is the safest way that lawyers can see for protecting fan activities.” & this is why AO3 has lots of rules about noncommercial use.

$ attracts attention, so copyright holders are more likely to sue if $ is involved.

We are seeing more ways that fans monetize their creations & Stacey is curious about non-lawyers’ thoughts.

[quick disclaimer, Kimberly Hirsh is not A lawyer and Stacey Lantagne is not YOUR lawyer.]

What about when copyright holders claim that they own rights to fan work? Platforms that are monetizing fan labor?

Let’s talk about LARPS! Daria came from fashion & media studies & is new to fan studies in the past ~6 mos.

LARP = Live-Action Role Playing.

LARPing is an event and a game, often based on/inspired by media products, appeals to fans, utilizes physical assets like props, costumes, food, accommodation. Can’t be 100% free.

Is LARP a commercial endeavor or not?

LARPs aren’t always medieval/fantasy themed. Other examples: wizarding, Downton Abbey/Upstairs-Downstairs “Fairweather Manor,” Star Wars, Westworld.

You can’t participate in a LARP without spending $ on accommodations, tickets, costumes, props.

LARPs also have merchandise.

College of Wizardry LARP originally used Harry Potter terms, but received contact from legal (at WB? JKR estate?) & subsequently changed names.

Case study - Star Wars Saberfighting - you can pay to take lightsaber fighting classes, which resulted in a market for unlicensed light sabers.

There is a relationship between embodied fanac like LARPing & $, which creates tension btwn fan creations & licensed merch.

Studying Game of Thrones fan experiences, analyzed brand, good brand due to fan loyalty & HBO branding work, with particular visual identity & brand image.

Distinction between official merchandise, licensed (like Monopoly), and unlicensed (like fan-created). Some fan creators do it just for fan love, some for career/biz, and some creators of unlicensed merch aren’t fans.

3 types of GoT on Etsy: reuse/distory/mock HBO features, inspired by GoT, GoT for SEO purposes (not actually GoT related)

Fan-made items tend to cost 2-3x less than similar official items.

While reappropriation items often are similar to official/licensed items, “inspired by” items - for example cosplay items - are filling a gap, as this kind of thing isn’t usually offered through official/licensed channels.

Fans in places where official places don’t ship (eg HBO doesn’t ship outside of USA) must choose either to purchase resold items that will ship to them or fan-created items that will ship to them.

Surveyed fans in English, French, & Spanish. About 1/5 of fans purchase exclusively fan creation, 70-80% prefer official, 50% or so buy both.

Fan tourists & cosplayers purchase more items than other fans. Fans mention Etsy as place to purchase

Fan consumers often like to purchase fan-created artifacts in order to support other fans.

Conflict btwn fans’ stated support of fan creators and actual purchasing habits which when possible they prefer to buy official products.