Fan Works and the Environmental Law of Copyright

Ideas and expression of those ideas are natural resources, and copyright law should take that into account more fully than it does. As copyright law struggles for balance in the newly realigned discourse in which everyone is a potentially equal participant, it may be useful to apply resource management law concepts from resources in the physical world to their noöspheric equivalents. The connection between property in the physical environment and property in the noöspheric environment has been explored as metaphor, but rarely as an underlying legal reality. The most commonly applied of these is the idea of the information commons; the increasingly outdated concept of the “tragedy of the commons” has been used to provide a theoretical underpinning for the economic approach to international environmental law while at the same time providing a useful rhetorical device – “the closing of the information commons” – in intellectual property law, and especially in copyright law. As environmental law moves away from the idea that shared use of a commons is a tragedy, perhaps intellectual property law should follow suit.

The physical environment falls into the realm of, or is at least apportioned by humans as, real and personal property, while the noösphere falls into the realm of intellectual property. The allocation of property interests in the products of human creativity involves, as with other forms of property, a bundle of rights. Historically this allocation has been structured in ways that undervalue the creative efforts of women and people of color, a characteristic it unfortunately shares with the law of real property and other areas of property law.

This article examines copyright law as a problem in natural resource allocation by focusing on the preparation of derivative works, and in particular outsider works such as fan works. Everyone has the potential to create original works, and nearly everyone has access to an online platform on which to publish those works. The potential for injustice comes from the raw material we have to work with. The ownership of the original works on which derivative works are based is increasingly concentrated, while the public domain, much like the high seas, has been diminished by the legal allocation of greater rights to formerly unowned property.

This article looks at some theoretical approaches to natural resource allocation problems and considers how they might apply to copyright and derivative works. It accepts that fan works have value both as discourse regarding the original work and as creative works in their own right, and ultimately reaches an optimistic conclusion: Fan works may be a way for the audience – and especially for historically marginalized subsets of the audience, including trans people and people of color – to reclaim and redeem works otherwise flawed either internally or by association with the original author.