In our previous post we reframed copyright disputes in general–and the problem of literary fan art specifically–in economic or Coasean terms: under what conditions do copyright owners get to have veto rights over fan art, and by the same reciprocal token, when do fans get to veto the veto rights of copyright owners when they revisualize or reimagine their literary works? Or, stated in plain and simple and jargon-free English, who gets to harm whom?
Once the question of fair use is reformulated this way–in terms of competing and reciprocal harms–, the fan art conundrum becomes soluble; the optimal level of fair use becomes a tractable problem: we should choose that rule or course of action that minimizes the overall level of harm. In the case of literary fan art, for example, my lawyerly intuition is that a narrow reading of the fair use doctrine would do more harm than a broad reading would. That is, courts would produce a greater degree of harm if they granted copyright owners unlimited veto rights over fan art than if they allowed fans greater leeway in reimagining and reinterpreting established works of art. And I would further venture to speculate that–to the extent that fan art rekindles interest in the underlying literary works that are being depicted or introduces those original works to new audiences–fan art will very likely generate new sales and expand the market for those underlying works.
But you don’t need to take my word for it or accept my mere mortal speculations as gospel. The various revisualizations of Hemingway’s novella that we have featured on this blog are paradigm cases of the main point I am trying to make here. Imagine a world without Olympia Le-Tan’s “Old Man and the Sea” clutch bags, or a world without Guy Harvey’s collection of “Old Man and the Sea” watercolors, or a world without Jodi Harvey-Brown’s “Old Man and the Sea” book sculptures. Aside from the fact that that is not a world I would want to live in, none of these pieces of fan art syphon off sales of Hemingway’s book or dissuade us from reading the novella. On the contrary, these sundry pieces breath new life into Hemingway’s story; they invite us to read or reread the old Cuban fisherman’s futile battle with the giant blue marlin. So, three cheers for fan art … for expanding markets, for rousing our collective imagination, and for creating new worlds of beauty!