James Madison, Father Of The Constitution, 4th US President... And Fan Fiction Writer

from the think-fan-fiction-is-just-about-teenage-girls? dept

Tell people that fan fiction is an important form of political speech that deserves protection, and they'll roll their eyes. The stereotypical fanfic writer is a teenage girl who writes misspelled stories about vampire love—is that kind of work really worth anything? Maybe there used to be folks like Shakespeare, Dante and Virgil who wrote stories about characters someone else invented, and yes, those stories changed the world, but let's face it: Vampire love. There's just no living that down.

Which makes it all the more mind-bending to learn that a man we respect, James Madison, Father of the Constitution and fourth President of the United States, wrote a story about a character he didn't create. Yes, the same man who wrote the Bill of Rights also wrote a fanfic. Vampires.

John Bull, the character Madison appropriated for his story, was created in 1712 by John Arbuthnot. Though forgotten today, Arbuthnot's satirical allegory about the War of the Spanish Succession, The Law is a Bottomless Pit, was very popular in its time. John Bull represented England, while other characters represented the rest of the nations involved in the war.

There was no fanfiction.net in Arbuthnot's time, but that didn't stop his readers from spinning off their own stories and comics which also used John Bull as a characterization of England. Over the course of a century, John Bull transcended his origins and became Britain's version of Uncle Sam. To the British he was a hero; to the American colonists, a villain.

Enter James Madison. The retired president was concerned over the growing rift between the North and the South. To give voice to his opinions on how the matter could be resolved peacefully, he wrote a short allegorical story, Jonathan Bull and Mary Bull, wherein a character named "Old Bull" represents England, and his descendants "Jonathan Bull" and "Mary Bull" represent the North and South respectively.

From a modern perspective the story is nothing much to read, but it does raise a rather intriguing question. Why fanfic? What made Madison decide to use existing characters to make his point rather than inventing his own characters like John Arbuthnot did for his own political allegory? And isn't using other people's characters without permission copyright infringement?

The easiest way to tackle these questions is to tell you an allegorical story. There once was a comic artist, "Jim M.," who wanted to comment upon the important issue of CIA torture. To make his point, he drew a three panel comic strip. In the first panel, Captain America is taking down a fanatical Nazi commander who tortured prisoners of war for the good of the Fatherland. "You will be tried for your crimes," he promises. In the second panel, Jim M. draws Captain America standing next to President Obama, who is casually observing that although the CIA did "torture some folks," the lapse can be excused because the torturers were patriots who loved their country. In the third panel we see Captain America's shadowed face as he walks away from a burning American flag.

Suppose Jim M. had created a new character, "Bob the freedom-loving American G.I." to use in place of the copyright and trademark-protected Captain America? It wouldn't have had half the impact, would it? Captain America's strong connection to American patiotrism and historic stand against the oppressive Nazi regime makes him an ideal character for Jim M.'s purposes. As for Bob the American G.I., the audience knows nothing about him. Even if Jim M. did try to provide Bob with a heroic backstory, readers would have to wade through 200 pages of unrelated material before they even got to the part about the CIA torture. Without the use of Captain America, Jim M. wouldn't be able to get his point across.

For Jim M., effective political speech requires the use of a popular icon, not an unknown character. Unfortunately, Jim M. has now opened himself up to a potential copyright lawsuit. If he chooses to defend his fair use rights, it will cost thousands of dollars in legal fees. If he loses, the damages could be even more grave.

James Madison didn't have to worry about the legality of his political speech because a) John Arbuthnot was Scottish and the U.S. didn't recognize international copyright laws at the time; b) John Bull had already entered the public domain; c) the creation of derivative works (such as fanfiction) had not yet been criminalized. It's that last point that concerns Jim M., because it means that he can no longer be sure that the law will protect his freedom of speech. It may, or it may not; either way, it will cost him thousands of dollars in court to find out. Compare that to the situation in Madison's day: If Madison had wanted to write an allegory where Captain America tries to make peace between the North and South, he could have done so without any fear of repercussions. Before derivative works became illegal, creators had the freedom to make use of the most appropriate character for their commentary without facing any consequences.

So what about Janice, who writes a five page long fanfic in which Edward and Bella visit the 9/11 site and wonder about the direction America is heading between passionate vampire kisses? Being born in 1901, Edward lived through WWII, and it turns out that he has some surprisingly insightful thoughts about the state of America today. The story concludes with Edward, who is telepathic, overhearing the hateful thoughts of his fellow visitors toward a man in a turban standing nearby. But Edward reads the man's thoughts, and learns that he is praying for the families of the victims.

Could Janice provide the same insightful opinions without using copyright-and trademark-protected Edward as her mouthpiece? Yes, but not as easily. It would be a tough challenge to develop Edward and Bella as rounded characters, then show Edward's unique powers and lifespan, all without shifting the emphasis away from the issues she wants to explore. Instead of writing a story about the impact of 9/11, Janice would end up writing a story about why her character has supernatural abilities.

Someone skeptical is saying, "Yeah, but do fanfic writers actually write stories like that?" Yes, absolutely! Fan creators make use of their favorite characters to propound their opinions on issues from racial equality to stopping SOPA. In the introductions to such stories, you will often hear the writer explain, "I thought such-and-such a character would be perfect for dealing with issue X because..." These writers have an innate understanding that the use of popular icons allows for powerful forms of expression that would be difficult to achieve by other means. Yet these same writers would have a very hard time proving that their creations are fair use before a judge.

Not that it matters, because such cases almost never go to court. Fair use is too fickle to be relied upon as a defense, and the expense of proving a point is too costly for the average person to bear. What we are left with is a situation where rights holders can basically censor political speech at will. Just imagine if John Arbuthnot had been able to order Madison to take down his story because he disagreed with Madison's political views. The President was deeply in debt at the end of his life, and like most of us, he could hardly afford an expensive loss in court.

Of course, some would argue that the ability to censor speech is a good thing. After all, suppose that an anti-Semitic fan wrote a story set in WWII where Edward joins the Hitler Youth? If it weren't for the laws against derivative works, the argument goes, Stephenie Meyer wouldn't have the right to take down the fan writer's objectionable ideas.

But it would be a mistake to assume that such censorship powers will always be used for good. Take for example the popular book, "The Education of Little Tree," written by Asa Earl Carter, a now-deceased member of the Klu Klux Klan. Suppose that a fanfic writer decided to have Carter's main character, Little Tree, befriend an African American boy as a way to express support for the idea that all men are brothers? The same power that gives Meyer the right to take down anti-Semitic speech also grants racists like Carter the ability to discriminate against the minorities they despise.

Most of us support freedom of speech, but for copyright holders, the right to censor views they disagree with has been all but enshrined as a legal right. What would happen, I wonder, if Jim M.'s Captain America cartoon went viral? Would his work be praised by Marvel, or would they send him a cease and desist letter? Would he crumple quietly, or fight it out in court for years?

"Yes," the critics say, "but we could avoid this whole problem if people just wouldn't write fanfics in the first place. Do your social commentary without using other people's IP!" You hear that, James Madison? You'll have to find another way to stop the Civil War. We have lawyers and they don't like how you're expressing your "creativity."

Madison cautiously approved of copyright, but I doubt that he suspected it would be used to chill free speech like his story 200 years later. The President clearly knew that derivative works can provide a compelling way to make a point, and as the author of the First Amendment, I'd like to think that he believed that fanfiction should be a protected form of expression. It's a shame that such a valuable means of public discourse has been almost criminalized today.


Reader Comments (rss)

(Flattened / Threaded)

  1.  
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    Ninja (profile), Aug 25th, 2014 @ 12:05pm

    Oh come on, when the past has stopped people from making mistakes? This articles lays down awesome points and counter-arguments for the copyright-happy crew and any sane person has already seen how much harm IP as a whole is causing but it's not enough for the maximalists. I see most of the copyright supporters (as it is now, I do think there is a place for copyrights in a much saner framework) as egoistical, selfish humans. Or largely ignorant of reality.

    I say write a story where Mickey falls into oblivion due to copyright moguls not letting it live. Would make for a pretty irony.

     

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  2.  
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    Violynne (profile), Aug 25th, 2014 @ 12:08pm

    The problem I have with the derivative works clause is that, frankly, everything is a derivative work. Let's say Janice did create a "telepathic vampire not named Edward", does anyone honestly think she still wouldn't get bashed because the character wasn't so original as to be (in Cracked's famous use of the word) "ripped off"?

    Doubtful, and this is why the law needs to be revamped to remove both transformative and derivative clauses. It's ridiculous to think anyone creates works on their own.

    We all create from what we see and it always starts off the same way: "I can do it better."

    There's a nice reminder I'd like to tell these people, so I'll write it in bold: Every story has been told, and every character has been created. What you are doing isn't creating anything new but telling us the same story in a different way.

    Just like the comic panel example, it's a different story using a character, though personally, I would belief having a real-life example of an American soldier would do more to solidify the point than a cartoon character that's more recognizable, but that's just my opinion.

     

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  3.  
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    Trevor, Aug 25th, 2014 @ 12:46pm

    Jonathan Bull and Mary Bull

    Still a better love story than Twilight.

     

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  4.  
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    sorrykb (profile), Aug 25th, 2014 @ 12:53pm

    No vampires

    I was deeply disappointed to read Jonathan Bull and Mary Bull in its preachy and disturbingly allegorical entirety and not see a single vampire.

    I expected vampires.

     

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  5.  
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    Anonymous Coward, Aug 25th, 2014 @ 1:23pm

    You wouldn't steal...

    You wouldn't steal a train.
    You wouldn't steal a national park.
    Theft of the public domain is theft.

    (Yes, I know this isn't quite a public domain issue. The challenge is here though: write a derivative of the above to properly reflect the article)

     

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  6.  
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    antidirt (profile), Aug 25th, 2014 @ 1:47pm

    Madison cautiously approved of copyright, but I doubt that he suspected it would be used to chill free speech like his story 200 years later.

    This notion that Madison was “cautious” of copyright is incomplete and hard to square with what he wrote in the Federalist Papers: “The utility of this power will scarcely be questioned. The copyright of authors has been solemnly adjudged, in Great Britain, to be a right of common law. The right to useful inventions seems with equal reason to belong to the inventors. The public good fully coincides in both cases with the claims of individuals.”

    And this is the same Madison who, while on a committee under the Articles of Confederation, said: “[N]othing is more properly a man’s own than the fruit of his study, and that the protection and security of literary property would greatly tend to encourage genius.”

    It seems to me that Madison saw copyright and free speech as complementary.

     

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  7.  
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    John Fenderson (profile), Aug 25th, 2014 @ 1:52pm

    Re:

    "It seems to me that Madison saw copyright and free speech as complementary"

    Perhaps so. If true, that would make him simply incorrect.

     

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  8.  
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    jameshogg (profile), Aug 25th, 2014 @ 2:54pm

    Re:

    Ownership of expression and freedom of expression are not complementary nor reconcilable.

     

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  9.  
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    Morgan Wick, Aug 25th, 2014 @ 3:12pm

    What if Jim M had used Uncle Sam instead of Captain America?

     

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  10.  
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    jameshogg (profile), Aug 25th, 2014 @ 3:18pm

    Very good post. We must all raise hell whenever derivative works are slandered as "cheap cat videos from the internet".

    Copyright advocates do not believe that derivative art is real art. And they would feel no shame whatsoever in calling for deviantArt.com to be shut down in the name of "artists rights".

    Ownership of expression is at odds with freedom of expression, despite the rationalisations from the other side. I have heard some people say that copyright should be an "exception" to free expression because somehow derivative art is not real art in the "property" sense and therefore it is disposable, and I have on the contrary heard that copyright is PRO freedom of expression because it supposedly brings about expressions that would not have been possible otherwise.

    But the attitude really being expressed here can be better summed up like this: they believe it is necessary to sacrifice some expressions in order to preserve other expressions, and more worryingly that they consider themselves fit enough to know where to draw the line between freedom and ownership. I say this is unjust. And I have plenty of historical examples of what happens when you get folk who consider themselves fit to draw lines like that.

    I don't have to believe in copyright in order to help artists make a living. I am against pirates taking something from artists without giving anything in return, and I am against pirates exploiting the artist's faith in the empty promises of copyright.

    But I ALSO believe this with respect to derivative artists, too. If there is one thing pirates and copyright believers have in common, it is that they both see derivative artists as disposable.

    That is why I do not believe in copyright. Assurance contracts are how you fund artists, and they are also how you secure equality for derivative artists. Because the WORK is what we are paying for, not the pseudo-product. And the work put in by derivative artists is JUST as laborious as original artists and therefore deserves all the same protection of property. Therefore, to get this equality we must abolish copyright and harness assurance contracts.

    Patreon is where it is at.

     

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  11.  
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    Anonymous Coward, Aug 25th, 2014 @ 3:23pm

    Sleeping beauty called and asked not to be woken up til her copyright expires.

     

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  12.  
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    antidirt (profile), Aug 25th, 2014 @ 3:29pm

    Re: Re:

    Ownership of expression and freedom of expression are not complementary nor reconcilable.

    That may be your opinion, but it is not an accurate description of the law--and we can all thank Professor Lessig for getting the Supreme Court to say so.

     

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  13.  
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    Zonker, Aug 25th, 2014 @ 3:34pm

    Re: No vampires

    That's because Abraham Lincoln hunted and slew all the vampires. Duh!

     

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  14.  
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    Anonymous Coward, Aug 25th, 2014 @ 3:45pm

    Re:

    Firstly, the copyright of authors wasn't actually adjudged to be common law in Britain. In Donaldson v Beckett, the House of Lords specifically found that there wasn't a common law copyright. That was 14 years before Madison wrote Federalist Paper #43.

    Secondly, Madison wasn't precisely arguing for copyright. He was arguing that the Federal government should legislate copyright, rather than having copyright established on a state-by-state basis. In that same paper, he immediately goes on to suggest that the seat of the Federal government should be under Federal jurisdiction, rather than state. He's talking about separation of powers, not copyright.

    Thirdly, Madison didn't view copyright as a complement to free speech, he viewed it as a government-granted monopoly. See his detached memoranda:

    Monoplies tho' in certain cases useful ought to be granted with caution, and guarded with strictness agst abuse. The Constitution of the U. S. has limited them to two cases, the authors of Books, and of useful inventions, in both which they are considered as a compensation for a benefit actually gained to the community as a purchase of property which the owner might otherwise withold from public use. There can be no just objection to a temporary monopoly in these cases but it ought to be temporary, because under that limitation a sufficient recompence and encouragement may be given. The limitation is particularly proper in the case of inventions, because they grow so much out of preceding ones that there is the less merit in the authors and because for the same reason, the discovery might be expected in a short time from other hands.... In all cases of monopoly, not excepting those specified in favor of authors & inventors, it would be well to reserve to the State, a right to terminate the monopoly by paying a specified and reasonable sum. This would guard against the public discontents resulting from the exorbitant gains of individuals, and from the inconvenient restrictions combined with them.

     

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  15.  
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    jameshogg (profile), Aug 25th, 2014 @ 4:01pm

    Re: Re: Re:

    I don't care what the law says. That's an argument from authority.

    The whole point about freedom of expression is that nobody is in a position to draw lines. Especially due to claims of owning the expression.

     

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  16.  
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    tanj, Aug 25th, 2014 @ 5:30pm

    Re:

    http://thomas.loc.gov/home/histdox/fed_43.html

    To the People of the State of New York:
    THE FOURTH class comprises the following miscellaneous powers:1. A power "to promote the progress of science and useful arts, by securing, for a limited time, to authors and inventors, the exclusive right to their respective writings and discoveries. "The utility of this power will scarcely be questioned. The copyright of authors has been solemnly adjudged, in Great Britain, to be a right of common law. The right to useful inventions seems with equal reason to belong to the inventors.

    To imply that Madison would find unlimited copyrights to be reasonable is ludicrous.

     

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  17.  
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    antidirt (profile), Aug 25th, 2014 @ 5:47pm

    Re: Re:

    Firstly, the copyright of authors wasn't actually adjudged to be common law in Britain. In Donaldson v Beckett, the House of Lords specifically found that there wasn't a common law copyright. That was 14 years before Madison wrote Federalist Paper #43.

    This isn’t relevant to the point I was making, but the Wikipedia article correctly notes that the majority of Lords found that there was in fact common law copyright (e.g., “‘Whether the author of any literary composition, and his assigns, had the sole right of printing and publishing the same, in perpetuity, by the common law?’ According to Burrow's report, the judges answered this question affirmatively by seven to four.”) Whether the Statute of Anne preempts that common law copyright is a different matter.

    Secondly, Madison wasn't precisely arguing for copyright. He was arguing that the Federal government should legislate copyright, rather than having copyright established on a state-by-state basis. In that same paper, he immediately goes on to suggest that the seat of the Federal government should be under Federal jurisdiction, rather than state. He's talking about separation of powers, not copyright.

    You don’t think Madison’s statement that “[t]he utility of this power will scarcely be questioned” and that “[t]he public good fully coincides in both cases [i.e., copyright and patent] with the claims of individuals” shows that he was arguing for copyright? What about the fact that Madison wrote and introduced the first copyright statute in Virginia in the 1780s?

    Thirdly, Madison didn't view copyright as a complement to free speech, he viewed it as a government-granted monopoly.

    I don’t understand why you think those are mutually exclusive. It can be a government-granted monopoly that complements free speech. My point is that it’s not giving us the whole picture to say that Madison was “cautious” with copyright when, as you point out, he thought “[t]here can be no just objection to a temporary monopoly in these cases . . . .” He was certainly cautious about granting monopolies in general, but copyright was one monopoly he clearly supported.

     

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  18.  
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    Whatever (profile), Aug 25th, 2014 @ 7:16pm

    Great post!

    However, I think that there is some misunderstanding here. The "John Bull" character was basically a political cartoon of the day, and while created by one was basically made common by many other political commentators of the day. It would be about on par with whoever came up with the first shot of "Obummer" instead of Obama, and not much more.

    For what it's worth, the original was in 1712. Madison's was in 1887. Even under today's copyright law, the image and character would have long been in the public domain. So great story, but not exactly news.

     

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  19.  
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    Whatever (profile), Aug 25th, 2014 @ 11:02pm

    Re:

    Sorry, quick correction, Madison's was late 1700's early 1800s... clearly he didn't write it after dying! :)

     

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  20.  
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    Ninja (profile), Aug 26th, 2014 @ 3:23am

    Re: No vampires

    Bulls, it's all about bulls!

     

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  21.  
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    John Fenderson (profile), Aug 26th, 2014 @ 8:08am

    Re: Re: Re:

    "I don’t understand why you think those are mutually exclusive"

    Perhaps because it's simple logic? The entire purpose of copyright is to restrict what information the people who don't hold the copyright may transmit to others. Therefore, copyright restricts free speech. I don't see how that's even remotely arguable. The real question is whether or not that restriction of speech is reasonable.

     

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  22.  
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    Ninja (profile), Aug 26th, 2014 @ 9:57am

    Re: Re: Re:

    Hardly. Copyright restricts speech by definition.

     

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  23.  
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    RonKaminsky (profile), Aug 27th, 2014 @ 12:49pm

    Re: Re: Re:

    > and we can all thank Professor Lessig for
    > getting the Supreme Court to say so.

    To troll effectively, you have to be subtle...

     

    reply to this | link to this | view in thread ]


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