Could Fandom "Fix" Copyright?

The PBS Idea Channel's May 7 episode looks at The Future of Fandoms. One cannot talk about fandom without running into fan fiction and the entire cadre of (usually not officially sanctioned) derivative works produced by fans. One of the possible futures posed in the episode is whether the growth, robustness, and increasing popularity of fandom will provide a more robust bulwark for fair use.

It's not an unreasonable question - despite the efforts of the Cartel and various large corporations to stamp out fannish work there are now things like fan-funded major films, and the 'Net provides ways for fans to organize and respond that did not exist decades ago. Where fan-created derivative works previously only existed in sort of shadowy or out-of-the-way spaces, you now have Comicon costuming on major news networks, Google images, Etsy stores, not to mention millions of blogs, sites, and generally transgressive Web pages.

By sheer volume it's impossible to police all this stuff, so the question is whether it will continue to exist in a legal limbo, or be able to be legitimized. My opinion is that we're unlikely to see a more robust fair use anytime soon, because the current regime works to everyone's advantage. Corporations can still selectively prosecute those works they find threatening, while making money off the fan base that is kept fed with the quasi-legal derivative works. Fandoms grow fan bases and keeping a robust fan base has always been in the interests of the promoters - that's why there used to be official fan clubs. And I suspect that many fandoms act as slush piles for creators. Most of it isn't usable but once in a while a gem will float by. Certainly enough people are convinced that commercial creators "stole their idea" to support an entire forest of advice and help Web sites.

It's also in the interest of the monied powers to keep people guessing. If you don't know whether or not the lawyers are going to show up at your doorstep you may self-censor, or seek licenses and permissions that you didn't actually need but are less costly than a legal defense against Disney's hatchet team. (Not to pick on Disney exclusively, but they are one of the most aggressive.)

If you think government is somehow going to come to the aid of fair use, well you haven't been watching the amazing amount of regulatory capture that has happened in the past six years. I doubt we'll ever see a major change in Executive position so long as there continues to be a revolving door between the regulators and the regulated.