This probably falls under the category of “self-promotion,” but maybe it also explains why I’ve been quiet on Madisonian for the past few months. I spent the last year working on an intensive empirical research project funded by the National Science Foundation. I was leading a team of law students to examine the copyright implications of a variety of user-generated content platforms. Our motivation for the research was what we perceived as a gap in the literature. There have been numerous discussions of the phenomenon of UGC, but most legal accounts have been premised on hand-picked examples. There’s nothing wrong with anecdotes, but we thought it would be better to have a statistical sense of UGC. The main question we asked was simply: “What are people actually doing?”
In other words, when you give a large number of amateurs access to creative tools and platforms for sharing new works, what sorts of things do they make (from the standpoint of copyright law)?
What we discovered, based on our samples, is that “fan work” — creative production that pays homage to copyright-protected popular media — is quite a common phenomenon on UGC platforms. Almost all our sample sets featured amateur fan works that raised potential copyright issues. Interestingly, the majority of these works were not “transformative remixes”, in the sense that very few authors expressly parodied or criticized the popular work being referenced. Also, it was notable that although fan work was a popular mode of artistic expression, the majority of the works (on platforms not explicitly devoted to fan works) appeared to be “original” in the copyright sense — so fan works are not the complete, or even the dominant, story of UGC.
Another interesting thing we found was that rich forms of UGC media tended to have more copyright problems. This makes sense intuitively: the more creative dimensions an author can work in, the more likely that one of those dimensions will raise copyright issues. Still, it was interesting to see that intuition expressed in comparative percentages. The converse also seemed true — limited and modular tool sets tend to correlate with decreased referential practices.
Another notable finding is that, based on our surveys, mere references to copyright protected works don’t seem to drive the popularity of particular items of UGC. So, for instance, if I do a pencil drawing of Harry Potter as opposed to something more original, the fact that I’m working from a known popular reference doesn’t seem to affect (in a statistically significant way) the community interest in my work (number of views/downloads) vis-a-vis more original content. However, it turns out that when we looked at the UGC content with the highest popularity, fan works turned out in higher percentages. So fan works did tend to be more popular in the sense that they were more likely to be present among the most popular UGC on a particular platform.
This is the first time I’ve done extensive descriptive empirical research with a large team and it is, quite frankly, a vastly different process than the normative and doctrinal work I’ve done in the past. The data we gathered from the project can be diced and sliced in such a wide variety of ways that it seems much of the art of this sort of scholarship consists of interpreting and presenting the data that has been gathered. At times, I found writing the Summary Report analogous to writing a travelogue — I wanted to maintain the flow of the narrative, but it was often hard to resist digressing to explore tidbits of fascinating correlations and comparisons that jumped out from the particular sample sets and surveys. For instance, it seems that if you want to write popular Harry Potter fan fiction, you’d be best off writing a sequel to the last book, and one that gives a speaking part to Harry, Ron, or Hermione. Again, that seems logical, but once we had our data, we found we could use the Mann-Whitney U to test it as a hypothesis.
The full report (which at 160 pages still seems to me like a terribly condensed summary) is posted on SSRN. At some point I may write a law review article that builds on the findings of the project. Before doing that, though, I’m planning to re-read what has been written in the law review literature on UGC to see what impact this data may have on the arguments that have already been made.