Rebecca Tushnet here.  I'm still working on some other comments, but Fred shamed me into acting now.  Also, I should disclose that I had already read and commented on an earlier draft of Julie's paper before this workshop started, so my comments may be more marginal.

The Buffy musical performance is a great example for me, because it is all copying and all innovation, like any performance. Fred suggests that there is nothing “remix culture” here, but I would argue that the relatively long pedigree of the performance right, combined with our now-default image of a “performance” as a recorded performance, has obscured the extent to which any performance is a new version and thus can be identified as a product of the romantic author/user. There’s a reason the counterPULSE theater folks decided to stage “Once More With Feeling” (OMWF) rather than project the DVD onto a big screen, the same reason people snapped up the tickets – because the performance would have put a different spin on the well-loved words, possibly offering new insights and certainly offering much fodder for comparison. As a friend of mine who teaches a Buffy studies class points out, staging what was a teleplay is particularly helpful for teasing out important differences between theater and film; for example, where the TV Buffy could show parallels between characters using cuts and other editing techniques, the stage Buffy cannot, but can use space – having one character stand exactly where another character did in a previous scene – in a way that’s less available to a filmed version. Likewise, fan fiction is often about retelling the same story, only different this time – a mix of the familiar and the new made interesting by being together. (Side note: this fan video (.avi), may not be entirely accessible to non-media fans, but it contains some wickedly funny commentary on copy-protection schemes and what a fan might do in response.)

What does that mean for the situated user? I’m not sure, but I’m increasingly convinced that “performance” is a relevant concept. Sonia Katyal is working on a paper using performance theory to show how copyright doctrines (particularly – sorry, Julie! – fair use, with its privileging of the original and the savage parody and its intolerance for the valley between the two) have distributional consequences for various user groups, including fan fiction writers. Performance theory could be used to talk about how people create coherent narratives for themselves out of the bits and pieces they find around them, or, directed more specifically at copyright’s exclusive rights, it could be used to help justify limits on things like the performance right.

Going back to Buffy, as I often do, I want to make two final points: First, Fox was apparently unprepared to license the theater’s performance; that is, not only did it not have a price for a public performance that didn’t involve playing the DVDs, it didn’t have a mechanism set up to set a price, because the theater was doing something so odd in the context of television. Second, Fox does sell the Buffy script books to the mass market (there are novelizations and spin-off novels and comics too, but here I’m speaking of the straight script books, spelling errors and all). As I recall, the OMWF script book includes musical notation as well, so that one could play the music on one’s own instruments. The theater simply proposed to use those script books as script books rather than as fan artifacts, the same way the original TV producers used the scripts. I think both of these things are related to the fact that Joss Whedon is one of TV’s few auteurs; he has been recognized as such by the fans themselves/ourselves.  There is a market for script books and new performances of OMWF the way there is not a market for the same things for, say, "CSI." And that to me confirms that the romantic user is structurally dependent on the romantic author, the person who creates something popular enough that fans can find each other as audiences by identifying as fellow fans.

Comments

[Bruce]

At the risk of being a pest, or rather, revealing myself as a pest, why should small community groups have all the fun of being "situated users"? That is, what distinguishes counterPULSE in the example above from a hypothetical attempt by, say, Bob & Harvey Weinstein to do the same thing? (The Weinsteins are among the producers of a musical version of "The Color Purple" -- I presume Alice Walker has licensed this production.) I'm sure the Weinsteins can satisfy the 4Cs, and The Color Purple seems like a significant addition to our culture.

If everyone's potentially a "situated user," at least with respect to some works, then really the argument seems to boil down to one advocating that the derivative works right (or in the case of OMWF, the public performance right) be nullified for certain works. But that seems to me to be a debate over "situated works" rather than "situated users." And I'm not sure the world is better off when there is no longer just one canonical set of sequels or spin-offs to favorite works, but dozens of them -- Fox Buffies, Warner Buffies, Pixar Buffies, Larry Flynt Buffies (the mind reels).

[Fred von Lohmann]

OK, Rebecca called me out. I'll admit, even a stage performance that seeks to duplicate the TV episode precisely has more than a hint of the romantic author/user about it. And, viewed strictly as a doctrinal matter, I don't think the audience (the non-romantic users here) would actually be violating any of Fox's exclusive rights by showing up for the performance. Or talking about it afterwards.

But I continue to feel that there is something more here than simply a "remix culture"/performance-as-transformative-use story. Does anyone else share that intuition?

[RTushnet]

Fred -- I would agree that performance isn't what we conventionally call transformative use, but that's because I think the concept of transformative use isn't as helpful as many people want it to be. Meanings are made and shifted all through the spectrum of mechanical copying through total rewriting, if it's even a spectrum and not something more 3-D.

Bruce -- fair points, and, like Julie, I'm not willing to draw a profit/not-for-profit line. I can't speak for Julie on this, but my understanding of the point of focusing on users rather than works is that it encourages us to think more dynamically -- about the conditions of consumption and production in the next generation. But analysis of users and works can't be completely separate.

As for your point about many Buffys, I've addressed the "whether the world is better off" issue here before, so I'll just say things that got left out of that post: First, as to "canon," I believe that most audience members are very good at distinguishing "real," "core," or "canon" Buffy from, say, the Buffys in fan fiction. Sherlock Holmes fans are a great example of this, because there is so much non-Doyle Holmesiana; nonetheless, someone using Holmes in a new work is much more likely to treat "A Scandal in Bohemia" as canon than "The Seven Per-Cent Solution," and readers of the new work are likely to protest more any inconsistencies with the Doyle story than with the Meyer book, because there is a consensus about what the canon is. There may be problems with multiple versions of characters floating around, but an inability to identify what the character "really" did isn't one of them.

Second, "Larry Flynt Buffys" are already out there, and are probably protected by fair use -- I don't know for sure that "Buffy the Vampire Layer" exists, but "The XXX-Files" and "Starballz" (Star Wars) do, the latter even prevailing against Lucasfilm's copyright/trademark claims, so a lot of the benefits of fixed interpretations are already missing. Certainly more interpretations could end up floating around if the derivative works right were abolished -- and I'm not advocating that it should be -- but canon isn't inviolate under the current regime.

[Bruce]

I guess my concern is that while it might be nice to focus on users, without a coherent line separating the cases that have intuitive appeal (community theater groups, fan fiction) from those that don't (cutthroat competitors), the discussion of users collapses theoretically into a discussion of works, despite our best intentions.

As for canonical works, I agree with you that under present conditions, for most works, users do not have much trouble distinguishing between, say, J.K. Rowling and the musings of some 12-year-old on the Internet. My concern though is that if there is no effective line between who's a "situated user" and who isn't, the canonical works problem, whatever you think of it, gets tremendously worse. Now it's not only J.K. Rowling versus hard-to-find 12-year-olds, but J.K. Rowling versus Stephen King versus John Grisham, all on the shelves next to each other at the same time at Borders. (Although arguably improved search and creation tools are giving individuals the power that only established authors and distributors used to have, for better and worse.)

I understand that's not what you or Julie are advocating; I'm just wondering how to interrupt the slippery slope. I don't have a good answer myself, yet.