Fair Use And Transformative Fan Works of Art

By Amber Topping

Defining what constitutes “fair use” in a constantly changing market of media and technology has and always will continue to cause controversy, especially when one takes the divisive subject of fair use, combines it with the immeasurable attempt to define what art actually is, then adds it to the legal issue of how the spectators of said art (defined or not) are allowed to respond to it – in this case, transformative fan works of art. 

The famous French Surrealist artist Marcel Duchamp may not be alive to speak for himself, but certainly one can easily argue he would be in favor of fair use in relation to transformative fan works today. In 1957 in Houston, Texas at the Convention of the American Federation of Arts, Duchamp presented an intriguing argument, as well as a surprising definition of the role of spectator in his speech The Creative Act. He begins by saying: “Let us consider two important factors, the two poles of the creation of art: the artist on the one hand, and on the other, the spectator who later becomes the posterity.” In other words, without the spectator (or the audience if you will) the art will never go anywhere. But does this importance extend to transformative fan works that are created as a reaction to art?

With the abundance of illegal downloads of movies, songs and books in connection to evolving online technology, it’s easy to see why the Digital Millennium Copyright Act (DCMA) of 1998 exists. No doubt artists of every kind deserve protection. And for the most part, I don’t think many question that the illegal unauthorized downloading of a song (especially one belonging to an indie artist just trying to make ends meet) is wrong – even if you decide to do it.

But what about the less-defined copyright issue of fair use, particularly in relation to transformative fan artworks, which if accepted as fair use would circumvent the DMCA? While this grey area has become more defined over the years, when it comes to what equates fair use, the definition is still not completely clear. And not everyone agrees on the subject, particularly in relation to transformative fan works such as vidding (the process of creating music videos using visuals from movies or TV shows to look at the material in a new way) or even fan fiction. Just look at all the user takedowns for copyright violations on YouTube. What one argues is fair use, another claims is a copyright infringement. 

One non-profit organization, The Organization for Transformative Works (OTW), attempts to clear up this confusion by advocating for the legitimacy of fan transformative art. Its members believe that the copyright laws as they stand now support transformative fan works as fair use, but there is still doubt, so they hope to “broaden knowledge of fan creators' rights and reduce the confusion and uncertainty on both fan and pro creators' sides about fair use as it applies to fanworks.”

Certainly the 2010 rulemaking in relation to the DMCA supports their stance. James H. Billington stated that the creation of “non-commercial videos” (which should include transformative fan videos) is allowed and legal. In the 1990 article “Toward a Fair Use Standard,” Judge Pierre N. Leval in the Harvard Law Review explained transformativeness and its justification in relation to fair use:

“I believe the answer to the question of justification turns primarily on whether, and to what extent, the challenged use is transformative. The use must be productive and must employ the quoted matter in a different manner or for a different purpose from the original. A quotation of copyrighted material that merely repackages or republishes the original is unlikely to pass the test; in Justice Story’s words, it would merely ‘supersede the objects’ of the original. If, on the other hand, the secondary use adds value to the original—if the quoted matter is used as raw material, transformed in the creation of new information, new aesthetics, new insights and understandings—this is the very type of activity that the fair use doctrine intends to protect for the enrichment of society."

Transformative uses may include criticizing the quoted work, exposing the character of the original author, proving a fact, or summarizing an idea argued in the original in order to defend or rebut it. They may also include parody, symbolism, aesthetic declarations, and innumerable other uses.” Ever look at GIFs or memes on Facebook, Pinterest or other social media? Those are examples of derivative, transformative fan works. How boring the Internet would be now without “Hey Girl” or the like. Yet there is still the argument to call fan works an example of copyright infringement, despite their transformative nature.

Perhaps the most famous derivative work is Marcel Duchamp’s L.H.O.O.Q, better known as Mona Lisa with a Moustache. As an artist himself, Duchamp truly helped bridge the gap between derivative and transformative works. By making it a parody (a statement against the French bourgeoisie) and with very little additions to DaVinci’s original, he accomplished the transformative effect. Today, it’s hard to imagine artists who explored derivative, transformative and appropriation art such as Duchamp or Andy Warhol being held back because of copyright law. That said, what they did was not always popular. (Warhol did face various lawsuits).

What fans create in modern transformative works of art today is really an extension of what artists like Duchamp and Warhol did in the past. And as much as some studio producers, artists and writers would like to control spectator reaction from a legal standpoint, that just is not realistic. Nathaniel Hawthorne, in his short story, The Artist of the Beautiful, wrote about just this. Owen Warland works tirelessly throughout the story to create his masterpiece, the “beautiful,” but in the end, once he does, no one cares. It would be easy to imagine that this would break Owen: his passion, his art seemingly trampled on by everyone else. But to him, it doesn’t matter because he created true beauty. He succeeded. He understood that he couldn’t control the reaction of the “spectator.” (That said, aren’t most transformative fan works positive anyway, which in turn usually only help promote the original artist’s creation?)

Hawthorne’s lesson was simple. Once we put what we’ve attempted to create in the world (our “beautiful,” if you will), we can no longer control what happens to it or at least, how people react to it. Part of this reaction is spectator participation.

Leo Tolstoy (author of War and Peace and Anna Karenina) also approached this symbiotic relationship between artist and audience, but with a more emotional bent. In his essay What is Art? (1898), he writes: “Every work of art causes the receiver to enter into a certain kind of relationship both with him who produced, or is producing, the art, and with all those who, simultaneously, previously, or subsequently, receive the same artistic impression.” He continues: “Art is a human activity consisting in this, that one man consciously, by means of certain external signs, hands on to others feelings he has lived through, and that other people are infected by these feelings and also experience them.”

If someone else laughs, do you laugh? If someone else yawns, do you yawn? That is what Tolstoy is referring to here. This interdependent relationship is the whole point. When we go to a movie and feel emotionally moved by it, we perhaps experience the same feelings of joy or despair the filmmaker felt in the creation process. Or perhaps we experience a different emotion altogether than what was intended, which is just as valid. Nonetheless, we have caught on to what they created. Both artist and spectator become connected. So if the artist is free to create, should the audience then be free to react?

Of course no one can control what you think or feel, but how you express said feelings is another story. Obviously no one wants plagiarism or stealing, but the creation of transformative fan works as a way to express emotions (while creating something new) after reacting to art is something else altogether. Marcel Duchamp closed his speech in Texas with these surprising words which support transformative fan art:

“The creative act is not performed by the artist alone; the spectator brings the work in contact with the external world by deciphering and interpreting its inner qualifications and thus adds his contribution to the creative act.” When fans create a fan video, write fan fiction, or even make up a funny meme or GIF, they are contributing to the creative act. They decipher it, interpret it, and then go on to visually (or in written word) express the art through transformative works.

Therefore, allowing spectators to participate in “the creative act” by creating transformative works (thereby also then becoming an artist), will stop us from becoming so much like the French bourgeoisie of old Duchamp had such pleasure in mocking.

Basically the problem comes down to this: How long can certain individuals attempt to try and control how the spectator contributes to “the creative act” without more than a little backlash? Such attempts to control spectator reaction fail common sense. Not only that, it stifles the right of every individual to appreciate art with complete emotional freedom.

Photo Credits:
Dr. Who by Alice X. Xhang
Johnny Depp and Steve Jobs - Truely Creative Transformative Artwork portraits created by Ben Heine.

The Strength of Your Beliefs: The X Files Video by Katrin Depp