Tag Archives: Lawrence Lessig

“The Game is Afoot”: Copyright, Fanbases, and Remix Culture

Before reading Lawrence Lessig’s Remix, I already had an interest in—if not very comprehensive knowledge of—copyright law. Lessig’s book reminded me of a recent(ish) legal case involving late-Victorian literature that I followed and which prompted me to think about the ways in which ideas of copyright law and remix culture are actually framed in public discourse.

Sherlock Holmes and John Watson Illustration by Sidney Paget for the story "The Greek Interpreter," which appeared in September 1893 issue of The Strand Magazine.
Sherlock Holmes and John Watson
Illustration by Sidney Paget for the story “The Greek Interpreter,” which appeared in September 1893 issue of The Strand Magazine.

About a year ago, Leslie S. Klinger, leading Sherlock Holmes expert and editor of The New Annotated Sherlock Holmes (a three-volume behemoth that took up quite a bit of my savings—and now quite a bit of my desk) filed a civil complaint against the Arthur Conan Doyle estate regarding the copyright status of the author’s most famous stories. Jennifer Schuessler of the New York Times gave a fairly thorough summary of the proceedings in her 15 February 2013 blog post, but the main gist is that Klinger protested against what he saw as unfair licensing fees for the (“remixed”?) versions of Doyle’s characters featured in “In the Company of Sherlock Holmes,” a collection of Holmesian stories he edited. Klinger argued that “since the main characters and elements of their story derived from materials published before Jan. 1, 1923,” they were no longer under the jurisdiction of U. S. copyright law, and his “complaint asks that the court make a declaratory judgment establishing  that the basic ‘Sherlock Holmes story elements’ are in the public domain” (Schuessler). Free-Sherlock.com, not to mention innumerable fan-sites, blogs, and social media outlets followed the case eagerly, the former providing a blow-by-blow of the actions filed, cases reviewed, and results achieved.

And, lo and behold, less than a year later (27 January 2014), Klinger—at least temporarily—won his case and Sherlock Holmes officially became part of the public domain. But what does that even mean?

In a segment titled “Sherlock’s Expiring Copyright: It’s Public Domain, Dear Watson,” All Things Considered explains that “A federal judge in Chicago recently ruled that the characters in Arthur Conan Doyle’s stories — excluding any elements introduced in the last 10 stories released in the U.S. after 1922 — now reside in the public domain”—even though those ten stories will be available within a decade. Yet, the matter does not rest there: Doyle estate attorney William Zieske claims that a forthcoming appeal will argue “that a character, particularly a literary character, really does not become entirely formed until the author has put down his pen and finished with the last story that develops that character” (All Things Considered). If we are using Lessig’s terminology, it seems we have reached an impasse (at least in opinion) between RW and RO.

Yet, I can’t help thinking about the dedicated Holmes fan-base, which has existed since the first stories first appeared in the The Strand Magazine in the 1890s and has only grown in size and enthusiasm over the course of the twentieth century, and in the wake of popular twenty-first century adaptations  like the superb BBC modernization, Sherlock. In fact, according to Christopher Redmond’s 2009 A Sherlock Holmes Handbook, “Sherlock Holmes has appeared in more films, and been represented by more actors than any other character” (232)–that is saying something, particularly considering the broad range of interpretations, parodies, and spinoffs that have been created in almost every medium possible.

Besides these “official” adaptations, there have also been a broad range of fan-created interpretations that exist largely online (art community and forum deviantART seems to be a major breeding ground). Popular iterations include slash pairing Johnlock, gender-swapped version Femlock (with some crossover to the previous iteration), and the ever-popular turn-human-characters-into-some-sort-of-adorable-animal (Sherlock ponies are a thing).

(http://bbcsherlockftw.tumblr.com/SherlockGIFS)
Adapting/remixing: it’s what people do. (Besides die, in the original context–James Moriarty (played by Andrew Scott) from BBC “Sherlock” episode, “The Great Game”)

Often, these “remixes” are artistic/aesthetic, but there’s also plenty of fan fiction, video mash-ups, and cosplay that supplement and fuel these offshoots. Gregg Gillis’ characterization of what he does with music being “more like a game and less like a product” (15) applies here–it’s probably safe to assume that most people in this particular fandom are simply engaging in these various ways out of love rather than with the desire to “publish” or profit from their “products” outside of sharing it with other fans. The “game” is indeed afoot.

What then do we make of this sort of unofficial “remixing,” particularly in the context of the still-raging debates about what use of texts/characters is allowed in legal terms, as well by the unspoken rules of fan-created media?

(A disclaimer: my appreciation of the Sherlock Holmes canon has never prompted me to venture into the realm of creating fan art, fan fiction, or “product” of any kind–I just observe many of these iterations with some amuse-/bemusement.)

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The False “Text” vs. “Media” Dichotomy: Academic Culture as Remix Culture

In this week’s round of responses, others have (rightly) called attention to the false dichotomy Lessig sets up between RO and RW culture. But as I was reading Remix, another opposition struck me as particularly bizarre: the binary Lessig attempts to construct between text and digital media. He boldly claims that

Text is today’s Latin. It is through text that we elites communicate (look at you, reading this book). For the masses, however, most information is gathered through other forms of media: TV, film, music, and music video. These forms of “writing” are the vernacular of today. (Lessig 67)

Wait—really? Even if we narrow Lessig’s definition of “text” to “alphabetic text,” which I believe is what he means, I have a difficult time believing that “the masses” are “gathering information” about the world exclusively through these non-alphabetic media. There’s a crucial distinction to be made here: the non-Latin-speaking ‘commoners’ of the European Middle Ages did not have the literacy necessary to make use of Latin as a medium of communication; the ‘masses’ who consume other kinds of media today are generally  literate in alphabetic texts. Yes, people are watching “New Girl” on TV and streaming movies on Netflix and watching/listening to Britney Spears on iTunes/YouTube/whatever. But they are also reading alphabetic text, even if they are doing so in different ways, in different environments, and surrounded by other media. To find evidence of this, we need only look at Facebook and Twitter, the two most widely used social media programs on the web: these are absolutely alphabetic text-saturated and -reading dependent environments.

No alphabetic text or reading going on here at all, no siree!
No alphabetic text or reading going on here at all, no siree!

The statistics Lessig cites in the same paragraph to claim “falling numbers for text” (67) make it especially apparent that he is falsely distinguishing print alphabetic reading practices from digital alphabetic reading practices. These statistics pit the act of “reading” against “playing games or using a computer for leisure” (67). But is it really not possible that we might read alphabetic texts (both in extended and fragmented forms) while we use our computers for leisure?

What I find particularly problematic about this false dichotomy between “text” and “other media” is that it allows Lessig to then claim that digital media remixes are somehow more convoluted, entangled, or even more creative than textual remixes. Lessig asserts that the ‘quotes’ used in digital remixes “happen at different layers. Unlike text, where the quotes follow in a single line—such as here, where the sentence explains, ‘and then a quote gets added’—remixed media may quote sounds over images, or video over text, or text over sounds. The quotes thus get mixed together. The mix produces the new creative work—the ‘remix’” (69).

As an academic(-in-training), I found myself more than a little irked at Lessig’s oversimplification here of the way that texts and ideas are circulated and remixed through alphabetic writing. In academic writing, we don’t just cite quotations—we cite ideas. Sometimes those ideas get represented through direct quotation, but often they do not: sometimes we paraphrase, sometimes we borrow someone else’s approach and apply it to a new text, and sometimes we do a little thing we like to call academic synthesis wherein we effectively “layer” others’ ideas to produce something new. To borrow some terms and ideas from Joe’s Rewriting, in each of these instances of putting others’ texts in service of our own writing projects, we are effectively rewriting them to say something new—an act I think we can justly call “creative work” and “remix.” Viewed through such a lens, textual remixes seem to me to be at least as complicated and difficult to disentangle as those composed using  digital media.

I highlight all of this in order to suggest that as much as academic culture may have to learn from digital culture (and I think it’s quite a lot!), there may be something digital culture can learn from academia as well. I suspect that the academy values intellectual property as much as the commercial sector, if not more—and yet, it has managed a system of attribution and citation wherein the use of others’ texts and ideas is not just free, but encouraged and expected as a means of contributing to a diverse body of texts and ways of knowing. Citation is more than an obligatory head-nod; it represents coveted influence within the culture. People want their work to be cited, to be rewritten, to be remixed. I am not arguing that academic culture is some utopian ideal, and I recognize that there are issues of compensation bound up in this discussion—issues we’ll no doubt attend to in next week’s discussion of Fitzpatrick’s Planned Obsolescence. But I still think there are values inherent to the remix culture of academia that are worth preserving, and worth trying to cultivate in the digital world.