That doesn’t mean they don’t have a case. Indeed, there’s much to be said on the scribblers’ behalf. Fan critics might be covered by the same “fair use” protections that enable journalists or academics to critically assess media content, or by recent Supreme Court decisions broadening the definition of parody to include sampling. Fans don’t profit from their borrowings, and they clearly mark their sites as unofficial to avoid consumer confusion. Fan sites don’t diminish market value, often actively organizing letter-writing campaigns to keep floundering programs on the networks.
Sadly, none of this matters. If you are a housewife in Nebraska and you receive a letter from Viacom’s attorneys telling you to remove your Web site or they will take away your house and your kid’s college fund, you don’t think twice about your alternatives. You fold.
As a result, although cease-and-desist orders are routine corporate practice, not a single case involving fan fiction has ever reached the courts. No civil-liberties organization has stepped forward to offer pro bono representation. Presumably, the right to free expression doesn’t extend to the right to participate in your culture. As currently understood, the First Amendment protects media producers, but not media consumers. Copyright and trademarks are legal “rights” granted to property owners, while fair use is a “defense” which can only be asserted and adjudicated in response to infringement charges. And most of the people being caught in these battles lack the financial resources to take on a major corporation in court.
Disney, Fox and Viacom understand what’s at stake here. The proliferating media mergers attest to their recognition that media convergence transforms intellectual property into solid gold. Viacom calls a television series like “Star Trek” a franchise that can generate a seemingly infinite number of derivative products and revenue streams in many media channels. What they can’t produce and market directly, they license to another company.
Preparing for this new era, media companies are expanding their legal control over intellectual property as far and as wide as possible, strip-mining our culture in the process. They have made inventive uses of trademark law to secure exclusive rights to everything from Spock’s pointy ears to Superman’s cape, pushed policies that erode the remaining protections for fair use, and lobbied for an expansion of the duration of their copyright protection and thus prevented works from falling into the public domain until they’ve been drained of value. In the end, we all suffer a diminished right to quote and critique core cultural materials. Imagine what our holiday season would look like if Clement Moore had trademarked Santa Claus!
For most of human history, the storyteller was the inheritor and protector of a shared cultural tradition. Homer took plots, characters, stories, well known to his audiences, and retold them in particularly vivid terms; the basic building blocks of his craft (plots, epithets, metaphors) were passed from one generation to another. The great works of the western tradition were polished like stones in a brook as they were handed off from bard to bard. This process of circulation and retelling improved the fit between story and culture, making these stories central to the way a people thought of themselves. King Arthur, for example, first surfaces as a passing reference in early chronicles and only over the course of several centuries of elaboration becomes complex enough to serve as the basis for Le Morte D’Arthur.
Contemporary Web culture is the traditional folk process working at lightning speed on a global scale. The difference is that our core myths now belong to corporations, rather than the folk.