Sunday, 29 December 2013

Not Only Breaking Down Walls

The 4th Wall - Or a Clear Legal Breach

As RAFrenzy opened the discussion again, but closed comments on her post "Speaking of the Fourth Wall", I want to verify, what I see as 'fair use' and what annoyes me so much about the late discussion of using fan-art and fan-fiction and breaking down the wall between actors and viewers (well-wishers or fans or just unbiased observers). May it be slash or whatever...

The private use and sharing and reading and re-reading and enjoying, may be sometimes even hating is all totally o.k. for me.

But what a journalist did by using one slash fiction, for one to humiliate actors and - what is the legally relevant breach in her action - for another to broadcast the creation without the permission of the creator, is absolutely condemmnable for me.

I know, I am a stickler for legal correctness - but beare with me, I make my living by obeying the rules and numerous regulations, not only of one country, but various. So I have to be aware of them, what the interviewer clearly was not.

So the offensive act of the interviewer not only is a breach of moral feelings and sensibilities, but it is a legal breach of the rights of an author.
And that status not only belongs to a conventially published book author, but also to a creator of fan-fiction. May it be as slashy and offensive as it likes. That does not change the fact that the author and the author alone has the right to decide what happens with his/her work. Though in case of fan-fiction and the use of creations of others, it quite automatically involves further rights which need to be obtained before a public broadcasting can be granted!
And publishing it publicly in any other form thant the author him/herself did, like in an interview, needs permission!

That and that alone is the offensive part for me in the whole affair.
I am almost certain actors are already aware that the fantasy of their fans is rather unlimited.

So sometimes they reach out through the so-called 4th wall and try to direct the perception, the interpretation or just make a nice impression on fans (or as we learned by one of those breaches of the 4th wall by Richard Armitage, to call them 'well-wishers').

Now, lets see what the new year 2014 will bring regarding new uproars and upheavals in fandom (well-wisherdom).

Have a happy, healthy and successful new year 2014
and enjoy every minute of it !!!


  1. I'm really glad you opened this discussion for oh so many reasons but mainly because I hadn't even considered the legal aspect of it. I talked about the Bern Convention on my blog over a year ago and I've often wondered how that relates to fan works. The Sherlock fandom is in a unique position because the source material is public domain so that gives them a certain freedom not shared by, say, fans of Anne Rice who has historically objected to all fan works based on her characters across the board.

    I think there are a couple of things going on here. I think if Caitlin Moran had done her homework she would have found that Moffat started out writing Dr. Who fic, for one, and she would have also discovered that both Freeman and Cumberbatch have been asked about it multiple times. Cumberbatch is on record as saying that he finds some fan art really beautiful; Freeman is on record as saying that he won't trash slash because he doesn't want to give the wrong impression to some fifteen-year-old kid. Those are the creators and those answers come from the hearts of people who know what it's like to put your heart into something. Creativity comes from openheartedness.

    As for the objections to slash, wow that's loaded. There's a common notion that female slash writers are sexually frustrated housewives but the most prolific slash writer I know is an out, proud and committed lesbian who writes in the Supernatural fandom. For her the fascination isn't the genetalia but the dynamic between the characters in her ship.

    Again, thanks for opening this discussion. Glad to see you blogging more frequently!

    1. Hello jazzbaby1 ! Good to see you here again! Hope you come good and healthy in a successful and wonderful new year 2014 !

      The legal aspect is quite clear in that regard, as it does not differentiate between what kind of thing is written, but by the act of creating work on its own. (I know there are arguments that fan-fiction is no independent creative work, but as soon as it continues or writes its own story for characters and builds creative substance, that argument no longer holds.) So the fan-fiction writer (as they in general build their own individual storyline and do not just re-tell or summarise a story) as well as every other writer and creator per se is treated in the same way.
      As the fan-fiction writer already uses, relies on and continues material by other creative artists and writers, the legal status starts to get complicated, as the initial rights holders need to be considered in full as well. (The rights to Sir Arthur Conan Doyle's work are free, but not the new one's of the film characters and the newly built up rights for this series. So even here it starts to get complicated, as soon as 'new' rights might be involved.)
      That is the reason why lawyers - and as a result publishers - leave their fingers from such works, as to clear all rights might take them till the last day of the universe...
      I sometimes get offered slash works or other explicit material and see the authors and their backgrounds. They often have quite interesting story lines for their characters and put much more psychological expertise into those than is in many works published by grand publishing houses.
      Though I must admit, due to time pressure, I do not read slash fan fiction nor nearly any other fan-fiction.
      Still, I see it as a legitimate way to express one's creativity and can understand that sometimes stories just press to the surface and need to be told.
      That makes me so angry, when those dear to the author's heart stories are misused outside their clearly defined and formed readership. (Even if 'online' suggests publicity, but in the masses that are published online daily, I would say one only finds what one searches for [with only minor exceptions and accidents]).

      Sorry to all congenial fan-fiction authors for being so oblivious. I know you are great !!!

  2. Interesting. I knew that most of Sherlock Holmes is now in the public domain (there was a court case about this in Wisconsin this week, apparently) but I didn't know that the misuse of a fanfic involved a legal violation.

    I personally don't think that Armitage sending a message to fans (sorry, I think "well-wishers" is silly and besides, it involves typing a hyphen -- lol) constitutes a break in the fourth wall in itself. If he refers to something fans are doing, then it's a break because he's admitting he sees the fans. But if he just speaks to fans as Richard Armitage, the difference to playing a role for our benefit are to me negligible.

    But as to the main event -- I guess what's still bugging me is the apparent perception on the part of some fans that they are seen by the press as different from other fans who do things the first group of fans don't like. It frustrates me that people think that because they don't write slash, they are (a) somehow not objectifying someone or (b) going to be recognized by the press for their virtue. The press wants to run down all fans. It likes tarring people with the brush of craziness. What I admire about what I've seen in the Sherlock fandom is that the fans mostly didn't seem to be jumping on the author of the story; they were in solidarity with her instead of trying to say, I'm not that kind of fan (which is what would have happened in the Armitage fandom, I'm fairly sure).

    1. Hello Servetus,
      Taking fan-art and fan-fiction often is without consequences, because for one, fans like to be in a positive focus, don't want to reveal their real name, do not know their rights or do not have the means or interest to follow up in a court case. [And as far as I know, no decisive case had come to a decision in the U.S. about fan-fiction to be held as precedent. Fortunately author's rights in general are defined more clearly and enough cases exist about those rights.]
      As also third party rights are involved in the own rights of a fan-fiction author, that already makes it a bussle for the fan-artist. So in general, there will be no negative consequence to abuse fans.
      But that does not make it right, just quite safe to do so.

      With the letters of RA, I tend to see them as clear step out of the artist - fan interaction with a clearly defined stage and audience. I rather see it in a way German theatre so often does it nowadays, by letting the actor on stage step aside from his role and make 'outside' comments with his own opinion about the piece and role he plays. I find that quite annoying.
      But in that way I see RA stepping away from his role and commenting on his acting by touching out to us fans as individual - telling us about his cooking skills - and not in one of his roles. I don't see that so much in his interviews, as there he still is more in an 'official' role to represent his role/acting/performance. But in his letters, he also comments about his private life, so clearly stepped off stage, so the 4 walls no longer apply for me.

      (I also do not like the well-wisher expression, though I have nothing against the sentiment. But I think I perhaps hate it so much, because it reminds me so much of the German word 'Gratulant' - somebody who is forced to appear somewhere where he would rather not be ;o) - Admittedly a very nasty translation of the word ;o) )

      To your estimation of the RA-fandom, I fear I rather agree and am glad the event did not happen here. It did stirr enough uproar from afar.
      That the press sees fans in a bad light in my view comes from a fear in the established press, that fans tend to be better informed than the official journalists. Why else would they search the fandom for clues what to ask their interview partners? That makes me put up the question, why do we still have journalists? A question they ask themselves and I fear not always know how to answer.
      That is why they need to discredit fans, to make the gap between journalists and fans seem wider, while fearing for their legitimacy.
      Fans are humans like all others and when pressure comes, not all will stick together, but some will try to avoid the pressure. By distancing themselves from some might help some to cope with their own involvement.
      I don't differentiate and see all expression of creativity as legitimate. What I detest is doing nothing and arguing when somebody else did something and discrediting him. I am a creator, not a destructor, so I support everybody who dares to create, if I like the result or not, but he took up the effort and work to try. Which is immeasurably much more valuable to me than one bad word about another one's creation.

  3. You make a very good point about the legal aspect. You're absolutely right - if the author hasn't granted permission of their content being used in some way, the journalist is in the wrong. The characters and their original stories might be in the public domain, but the fanfiction isn't. That's copyrighted to the respective fanfic authors.

    I don't read fanfic, but it's a sort of world of its own. I've participated in some fanfic about Modern Talking back in the day, which was for the most part extremely cartoonish, but if some interviewer was to read an excerpt of one of them to the duo ... I perhaps wouldn't be crying "HEY THAT'S COPYRIGHTED" but rather ... would want to temporarily vanish off the face of the earth to hide my embarassment! In the context of the fanfic world, anything goes pretty much, but taken outside of its context, woah, it becomes a whole different beast, and something that's meant as being romantic or just downright silly becomes weird and/or offensive, simply because the interviewer and the "objects" aren't a part of the fanfic community and, well, "don't get it".

    Anyway. Hope you had a lovely Weihnachten, and wish you a GUTES NEUES JAHR! :D

    1. Thank you very much, Traxy !!!!
      I hope you and your family will have a wonderful and successful year 2014.
      With the fan-fiction and world of its own, I fully agree. That is why I dislike so much that an un-suspecting author is drawn out of context and made an example of.
      I see the whole internet and online world as a vast accumulation of sub-groups with their own 'jargon'. They mostly don't mingle. So the argument that publishing online is public for all just does not cut it for me. Not with all my problems getting online attention to things I want to bring attention to. If online just were so public, why would I have to bother?
      In a way, every private house is public - as it is visible from a public street and can be looked at and even to some extent photographed. But do I know every house or visit it? No, I clearly and decidedly have to go there. And I see it the same way with information on the internet. I need to be somewhere close to understand its context, the same way as I do with the fan-fiction.
      Thank you for commenting, Traxy! All the best to you!!!

  4. Well dumb me, I didn't even realize I had closed comments on that post. I just figured people had already thrashed it enough. LOL!

    Seriously, I have had so much going on, I flat missed that somehow my comments were turned off. That's how truly out of it I've been because of my personal situation. If someone has taken that personally, I guess they will have to overlook it since there is not much I can do about the fact I have literally almost gone under a times.

    Now I need to go back and read this entire post and the comments as I really am curious what people think.

    1. No problem, RAFrenzy!
      I am busy right now myself and did not take the time to contact you about the closed comments, just wanted to throw out my own comment and so posted it on my blog.
      It is just something I work with every day, as people have such a strong legal sensitivity in some strange aspects, while not bothering on large legal breaches, the topic is something which gets to me, as especially the traditional media journalists often heat up absolutely marginal aspects while not touching the real issues.

  5. Given the stricter legal definition of Fair Dealing in the UK and the case law on the books, I tend to think this reading of the fan fic as a breach, but then nothing is clear cut in a court.

    With respect to the journalist, I think her laziness in preparing made her appear stupid. I don't even read Sherlock fanfic, and even I knew that Cumberbatch and Freeman were not going to react to slash with embarrassment. And that did seem to be her objective. Bring about some tenseness and possible tittering from the audience as if they were all in junior high. As for slash, it has been fairly prevalent in fandoms for so long (30+ years). Obviously, Ms. Moran is not familiar with fandom.

    With respect to the writer, she can sue Ms. Moran if she's that concerned about a breach; otherwise, you put something in cyber space, it's there.

    As for Richard Armitage, his original letters were more about light hearted banter with fans. That began to change in 2008 when there was a schism of some sort as I'm confident all reading this comment are well aware. I've been told about it by some parties who were present, but I'm still not sure I understand what happened. It doesn't matter. Whatever happened, there was a new stance on his part that was more in the way of a teacher needing to calm/encourage the students. And I still get the sense at times that he feels the need to instruct on good behavior. Then again I may be reacting to the phrase that was often quoted by fans to instruct, " willingly good, extra good, extra peaceful and extra forgiving." All good things, but I don't think any of us are here for a moral lesson.

    As for my post on the 4th wall, I did go back and post again about his latest letter because I wanted to make it clear that I do appreciate Richard Armitage is kind or very much appears that way, and he honestly wants people to have a sense of peacefulness and fun. And if you will notice, I used emoticons and maybe an LOL or two in that piece (Gave myself a Christmas present) because for those who have not figured it out yet, I really do like to laugh.

    Sadly, I realize some people do not have much of a sense of humor and get offended easily. I could be wrong about that, but it appears that way at times.

    1. Thank you, RAFrenzy, for commenting!
      I am sorry you took my article as criticism of yours. It is not meant that way. You just inspired my thoughts with yours and I was not able to leave a comment on your blog, so just put the comment on mine.
      Where we clearly differ is the way of publicity with online things.
      When the fan-fiction is published online, it is not automatically giving permission of its commercial use, what a use by journalists is, as journalists use it for their work and not privately digest the fan-fiction and enjoy or hate it.
      This is the breach, not that the journalist or whoever wants can read it, but its commercial 'use' in an interview, where the interviewer makes money for her time spent with reporting about the fan-fiction and with the interview itself. That has nothing to do with 'fair use' in a private, non-commercial way and so needs extra 'permission' to be legitimate.
      The journalist must be aware that she is not a 'private' person at the moment when she holds and publishes that interview. She does not hold the same rights as another fan reading the fan-fiction.
      In that the U.S. does not so essentially differ from either the U.K. or Germany, though with the legal system (which I unfortunately don't trust to a large extent), I perhaps would not hold my hand into a fire for any certain outcome of an actual verdict in court.
      Regarding RA, I can only say that I am very glad the event did not occur in RA fandom. I would not have liked to see the effects of such an event and am glad we were spared it so far.
      Regarding humour, I am of the opinion, humour is when all people in a group can laugh about the same thing. Where some feel offended, humour ends.
      I find the RA-fandom a lovely and humorous group, where understanding and support dominate and that is something I excessively appreciate. But I also like the clear words and the possibility of a discussion of topics without censure, as censure takes out the joy and freedom of it. And as I am of the opinion, we fortunately don't have super fans and better fans and better actors who are in a position to either judge or advice others to do what they want, the fandom for me is fortunately a place of freedom, understanding, openness, support and friendship.

  6. I didn't take what you said as criticism. I just want to make it absolutely clear that I do not dislike Richard Armitage nor his letters. Maybe I was feeling a little guilty about that post. LOL!

    As to the "clear" legal breach, I don't see it. Under the Fair Dealing doctrine, pieces can be read to make commentary and to report news and must be non-commercial in doing so. An attorney would have to make the case that the use of the piece in this event was for commercial purpose since it was commentary and was in some sense news reporting. Besides, almost nothing is a "clear" case when it comes to something legal.

    Other than that, what attorney would take this case? There's no money in it, and that really is the bottom line. :D

    1. I think where I have been unclear is: Journalism is a commercial use, as the journalist as well as the publisher/newspaper/tv-station/etc. makes money with the work.
      'Commercial' is not just for product advertisements, so journalists can't apply the fair use 'non-commercial' for their work. (Though I think some, e.g. student organisations might have special exception regulations in the U.S., though that is not applicable in general and in this case.) I know this often causes problems as especially young journalists don't see the point in this and break the rules, because they think they work for a 'greater good'. But it is just not the way things work in the journalism industry.
      I don't think the U.S. and Europe disagree in the general aspects overly much, though I would not like to be drawn in front of a U.S. court - and hopefully never will have to see one from the inside, not even by proxy.
      Blogs are a different thing entirely to official journalism in that aspect and here you are right, the non-commercial rule applies.

    2. Let me start off by saying, you may well be right about U.K. law. I'm really not sure and could never be entirely sure unless a case is actually adjudicated because copyright is tricky and a good lawyer can argue all sorts of points and especially with the ever changing landscape of copyright. But for now, I'm going to come down on the side that nothing illegal was done by Caitlin Moran. In poor taste? Yeah. But not illegal, and I base that primarily on reading the U.K. law and its provision for public readings of works (ref: CDPA 1988 c. 48
      Part I, Chapter III: Miscellaneous: literary, dramatic, musical and artistic works, Section 59
      ). Again, I could be wrong 'cause you never know what's going to happen at the courthouse, but that passage seems pretty straightforward. Interesting reading as well. I went on to read quite a few other chapters. Very enlightening.

      As for journalists not being able to avail themselves of the Fair Use or Fair Dealing doctrine in the U.S. and U.K. respectively because they may be doing something for commercial purposes, it seems they are one of the significant portions of the population who rely on the doctrines to do their jobs, and it's my understanding if they meet the test they are reporting, use reasonable extracts of a written work and not an entire work, and give sufficient acknowledgment of the creator of the work, it's immaterial if they are doing it for commercial reasons. Again, I could be wrong about that with respect to U.K. law, but that's how I understand it today.

      As for blogs, I can only speak to the U.S, and it's my understanding from counsel that they are held to the same standards as academics and/ or professional journalists, and non-commercial or commercial use is immaterial in the latter case. In fact, in the U.S. this is one of the biggest misconceptions about Fair Use, i.e., that someone not using a work for commercial gain can use it to their heart's content under the Fair Use doctrine. What they often don't realize is that while they may not be gaining commercially themselves, they may be impacting the owner of the work's ability to gain commercially, .e.g, posting entire or significant portions of magazine articles for people to read thereby making inroads into the ability of the magazine to gain revenue either through subscriptions or ads. I've often seen blogs who do this under the notion that curation allows them to do it, and that's simply not the case.

      Anyway, that's what I understand from the lawyers I've paid, But I'm always willing to learn something new and chiefly because I advise clients about their content marketing which often includes the very tricky area of curation.

    3. You mix the legal aspects involved and which I tried to make clear to what (singular) aspect and breach I refer to.
      You also don't get the 'commercial' aspect in journalism, which is not topic related, but impending. I already excluded blogs from the equation and you mix them in again, though they are on a totally different legal argumentation line (or better lines) and legal basis. Law right now is in the process of developing how best to cope with them, so the legal regulations are in a process of changing. You need to keep watching the jurisdiction to get the latest developments and interpretations in court.
      I clearly see why you don't get the difference which I tried to explain. Though please do try not to spread misconceptions and half-truths.

      I won't comment on that any more than I already did. I have much work to do and to spend my time giving counsel here is not among my priorities right now.
      (I even was close to deleting your comment, as it is misguiding and wildly mixing argumentation lines. For the time being, I leave it here, but it is no good to settle the discussion or even bring light into the legal aspects, as it mixes the lines I tried to clear all over again.)

    4. I was merely explaining why I came to my conclusion about the situation. I have no wish to argue this and prefaced my remarks with the comment that you may well be right about the U.K. How in that you got I wanted to give misconceptions or half-truths, I don't understand. But I guess I gave that impression, and for that I apologize.

    5. No apology necessary, RAFrenzy.
      I understand what you tried to do and after all, a blog is there to discuss things, so I am very reluctant to step in and 'stop' some topics from being discussed.
      Why I perhaps reacted a bit aggressively and resolutely was, because - after I had tried to differentiate between legal aspects - you pushed them onto one indistinct heap once again. So I found, leaving your comment unanswered a bit dangerous and misguiding.
      And there is no speciality of my mentioned aspect for the U.K. The main discussion I had been referring to was lead in the U.S.A. some few years ago, though it also had its effects on the European way of treating the matter, though each country has its own way of embedding the outcome in legal arguments and legislation. (And the changes are far from over, especially with the ground-breaking revolution in publishing, newspaper industry and journalism currently occurring.)