Tinhatting the Constitution: Originalism as a Fandom

Several recent Supreme Court cases, most notably Bruen and Dobbs, have employed originalist methods to interpreting the Constitution, seeking to give the Second and Fourteenth Amendments, respectively, the meaning that was understood by the public in 1791 and 1868. In this imaginative exercise compiling massive amounts of textual evidence to arrive at conclusions regarding what unknown people were thinking, originalism resembles a type of fandom practice called RPF, or Real Person Fiction. This type of fan activity likewise compiles massive amounts of textual evidence to arrive at conclusions regarding what unknown people were thinking. It’s just that RPF revolves around celebrities instead of the Framers. This Article seeks to interrogate originalism through a fandom lens, viewing it as a type of RPF. Doing so can provide a different perspective on some of the criticisms that have been leveled at RPF, including its lack of neutrality and diversity. This Article finds that originalism is actually a particular RPF phenomenon known as “tinhatting,” in which those engaging in the imaginative exercise believe their conclusions to be the truth. Tinhatters are maligned in fandom, leading to query why originalists are not so easily dismissed

Sherlock Holmes and the Case of the Lucrative Fandom: Recognizing the Economic Power of Fanworks and Reimagining Fair Use in Copyright

Fan culture, in the form of fan-created works like fanfiction, fanart, and fanvids, is often associated with the Internet. However, fandom has existed for as long as stories have been told. Sir Arthur Conan Doyle’s Sherlock Holmes stories inspired a passionate fandom long before the age of the Internet. Despite their persistence, fanworks have long existed in a gray area of copyright law. Determining if any given fanwork is infringing requires a fair use analysis. Although these analyses pay lip service to a requirement of aesthetic neutrality, they tend to become bogged down by unarticulated artistic judgments that hinge on a court’s personal interpretations of the work in question. One outcome of this emphasis on aesthetic value has been a de-emphasis of the market harm factor of fair use, the examination of which has come to be subsumed by courts’ aesthetic judgments. This de-emphasis of the financial aspect of fair use has strong implications for the legality of fanworks. Mainstream culture has historically considered fanworks to have little aesthetic value, which can lead to knee-jerk findings of infringement in aesthetic-based fair use analyses. However, both old, venerable fandoms like Sherlock Holmes and new works funded by Kickstarter demonstrate that fanworks can actually enable further creativity by the copyright-holder and increase the value of the original work rather than detract from it. Shifting the focus of fair use analysis to a market-based approach would prioritize economic returns over courts’ artistic opinions. Such a shift would correct the imbalance created by aesthetic value judgments of free works that cause no economic harm and recognize that fanworks often operate as market facilitators, not market rivals. This Article examines the phenomenon of fandom and its effect on the original works that inspired it through the medium of both old fandoms that pre-date the Internet age and new fandoms that have come of age in a digital world. This Article argues that active fandoms producing a large amount of fanworks tend to aid the goals of copyright. It further posits that fair use analysis of these works should be re-focused on ensuring a meaningful examination of the effect on the market factor that avoids the taint of courts’ aesthetic judgments. A renewed appreciation for the effect on the market factor would result in a more accurate application of the fair use doctrine that would acknowledge the role of fanworks and their participatory culture in supporting the economic incentive motivation of copyright

When Real People Become Fictional: The Collision of Trademark, Copyright, and Publicity Rights in Online Stories About Celebrities

Fanficion is frequently defined as the writing of fiction involving the characters or setting of someone else’s creation. However, there is a subset of fanfiction that is known as Real Person Fiction, or RPF. This subset writes stories not about other people’s fictional creations but about real people, whether they be hockey players or movie stars, and it has long been the scene of heated debate in the fan community. Some fans who readily and enthusiastically engage with fanfiction draw strict “squick” lines about RPF and call it “creepy” and “disturbing.” Perhaps for this reason, scholars have paid little attention to online stories about celebrities in evaluations of fan activities. From a legal standpoint, however, these stories are much more easily defensible than fanfiction. As they involve real people instead of fictional creations, they do not implicate copyright and so are protected from the charges of copyright infringement that could be levied at other pieces of fanfiction.Their First Amendment implications and non-commercial speech aspectstend to protect them from attacks using trademark law. Finally, theirembrace of wildly unlikely fictional scenarios—ranging from movie stars recast as baristas to pregnant male hockey players—shields them from any possible liability for privacy right or publicity right violations. This Article concludes that online stories about celebrities are currently legally protected, possibly more so than more traditional forms of fanfiction and even some more mainstream forms of storytelling. It further concludes that these stories should be so protected as a matter of sound policy

Sherlock Holmes and the Case of the Lucrative Fandom: Recognizing the Economic Power of Fanworks and Reimagining Fair Use in Copyright

Fan culture, in the form of fan-created works like fanfiction, fanart, and fanvids, is often associated with the Internet. However, fandom has existed for as long as stories have been told. Sir Arthur Conan Doyle’s Sherlock Holmes stories inspired a passionate fandom long before the age of the Internet. Despite their persistence, fanworks have long existed in a gray area of copyright law. Determining if any given fanwork is infringing requires a fair use analysis. Although these analyses pay lip service to a requirement of aesthetic neutrality, they tend to become bogged down by unarticulated artistic judgments that hinge on a court’s personal interpretations of the work in question. One outcome of this emphasis on aesthetic value has been a de-emphasis of the market harm factor of fair use, the examination of which has come to be subsumed by courts’ aesthetic judgments. This de-emphasis of the financial aspect of fair use has strong implications for the legality of fanworks. Mainstream culture has historically considered fanworks to have little aesthetic value, which can lead to knee-jerk findings of infringement in aesthetic-based fair use analyses. However, both old, venerable fandoms like Sherlock Holmes and new works funded by Kickstarter demonstrate that fanworks can actually enable further creativity by the copyright-holder and increase the value of the original work rather than detract from it. Shifting the focus of fair use analysis to a market-based approach would prioritize economic returns over courts’ artistic opinions. Such a shift would correct the imbalance created by aesthetic value judgments of free works that cause no economic harm and recognize that fanworks often operate as market facilitators, not market rivals. This Article examines the phenomenon of fandom and its effect on the original works that inspired it through the medium of both old fandoms that pre-date the Internet age and new fandoms that have come of age in a digital world. This Article argues that active fandoms producing a large amount of fanworks tend to aid the goals of copyright. It further posits that fair use analysis of these works should be re-focused on ensuring a meaningful examination of the effect on the market factor that avoids the taint of courts’ aesthetic judgments. A renewed appreciation for the effect on the market factor would result in a more accurate application of the fair use doctrine that would acknowledge the role of fanworks and their participatory culture in supporting the economic incentive motivation of copyright

Famous on the Internet: The Spectrum of Internet Memes and the Legal Challenge of Evolving Methods of Communication

On a daily basis, millions of Internet users re-blog, re-tweet, and re-post the content of others on social media. It is conduct that has led to a flourishing social Internet culture, but it is also conduct that implicates many clashing interests. For some, an Internet meme is a work of their own creativity whose co-option by the Internet at large is an act of infringement. For others, an Internet meme is a violation of their privacy resulting in severe emotional distress. For still others, an Internet meme is a vital communicative tool expressing particular ideas that cannot be articulated in any other way. This Article argues that the legal analyses applied to memes should strive to seek a balance between all of these interests, promoting the continuation of meme culture while also protecting those harmed by meme culture’s excesses. This Article uses the examples of a number of different memes to demonstrate that meme usage encompasses a spectrum of activity ranging from static to mutating in nature. These different uses have correspondingly different impacts on the legal rights of all three meme interest groups, none of which are adequately captured by traditional applications of existing doctrines of intellectual property or privacy laws. This Article posits that explicit acknowledgment of the wide spectrum of meme behavior should be used to help guide and appropriately adjust the application of legal doctrine to the meme in question, with attention paid to the underlying policy interests of a particular meme use. This can lead to more effective legal decisions regarding these memes that balance more precisely the interests of all those affected—both negatively and positively—by Internet meme culture

When Real People Become Fictional: The Collision of Trademark, Copyright, and Publicity Rights in Online Stories About Celebrities

Fanficion is frequently defined as the writing of fiction involving the characters or setting of someone else’s creation. However, there is a subset of fanfiction that is known as Real Person Fiction, or RPF. This subset writes stories not about other people’s fictional creations but about real people, whether they be hockey players or movie stars, and it has long been the scene of heated debate in the fan community. Some fans who readily and enthusiastically engage with fanfiction draw strict “squick” lines about RPF and call it “creepy” and “disturbing.” Perhaps for this reason, scholars have paid little attention to online stories about celebrities in evaluations of fan activities. From a legal standpoint, however, these stories are much more easily defensible than fanfiction. As they involve real people instead of fictional creations, they do not implicate copyright and so are protected from the charges of copyright infringement that could be levied at other pieces of fanfiction.Their First Amendment implications and non-commercial speech aspectstend to protect them from attacks using trademark law. Finally, theirembrace of wildly unlikely fictional scenarios—ranging from movie stars recast as baristas to pregnant male hockey players—shields them from any possible liability for privacy right or publicity right violations. This Article concludes that online stories about celebrities are currently legally protected, possibly more so than more traditional forms of fanfiction and even some more mainstream forms of storytelling. It further concludes that these stories should be so protected as a matter of sound policy

WASH interventions in emergencies and outbreaks: two systematic reviews and impact analyses

There is a lack of evidence-base for WASH interventions in emergencies, although many agencies collect various types of evidence that is not formally published or widely shared. The aim of this work is to help provide policy relevant evidence of WASH interventions by summarizing the information collected by NGOs, UN agencies, or local governments responding to humanitarian emergencies and disease outbreaks. A systematic search covered academic databases, agency websites, and direct solicitation of humanitarian actors. Qualitative and quantitative research methodologies, as well as, both published and grey literature were eligible for review. More than 15,000 manuscripts were identified, 1,500 abstracts assessed, and 500 full texts reviewed. Final included manuscripts will be summarized using the GRADE summary of findings around the themes of: use of service; health-related outcomes; non-health related outcomes; barriers and facilitators to implementation; and cost-effectiveness. This work will establish a real-world evidence-base for humanitarian WASH policy