DOES GENDER INFLUENCE ATTITUDES TOWARD COPYRIGHT IN THE FILK COMMUNITY? MELISSA L. TATUM* DR. ROBERT SPOOt BENJAMIN POPE1 I. Filk and the Filk Com m unity ................................................................. 220 A. The Origins of the Filk Movement ............................................ 220 B. Intellectual Property Implications of Filk Creations .................. 223 II. Intellectual Property Issues in Filk ........................................................ 229 A . C opyright for Songs ................................................................... 229 B . F air U se ...................................................................................... 233 C . Parody as Fair U se ..................................................................... 236 D . C reative Com mons .................................................................... 238 III. S urvey ..................................................................................................2 39 A . Study M ethodology .................................................................... 240 B . F indings ...................................................................................... 24 1 C . Song D atabase ............................................................................ 242 D . Filk Survey D atabase ................................................................. 246 E . B asic B ackground ....................................................................... 246 F . Types of Songs ........................................................................... 250 G. Understanding of Copyright and Intellectual Property Law ...... 250 H. Attitudes and Approaches to Copyright and Intellectual Property L aw ........................................................................... 253 IV . C onclusion ........................................................................................... 254 . Research Professor of Law and Associate Director, Indigenous Peoples Law and Policy Program, University of Arizona James E. Rogers College of Law. Tatum is also a member of the filk community, with several published songs to her credit. The authors would like to thank the organizers of American University's Sixth Annual Conference on IP/Gender: Mapping the Connections, whose call for papers sparked this article, as well as the members of the filk community for sharing their thoughts and comments. t Associate Professor, University of Tulsa College of Law; B.A. Lawrence University; M.A., Ph.D. Princeton University; J.D. Yale University. Graduate Student, University of Arizona's Graduate Interdisciplinary Program in Statistics. 220 JOURNAL OF GENDER, SOCIAL POLICY & THE LAW [Vol. 18:2 If you are reading this article, you likely either already know what the filk community is and are wondering why it is mentioned in a law review article or you are mentally asking "the WHAT community?" and are wondering whether something went dreadfully wrong at the copyedit stage. "Filk" is the term used to describe the music of the science fiction community, and "filkers" are the members of the filk community and are most commonly found participating in song circles at science fiction conventions. Over the past twenty years, the filk community has expanded from a small group of science fiction convention-goers who occupied unused convention rooms during late night hours to a community large enough to organize several dedicated filk conventions each year, a Hall of Fame, and an annual awards ceremony. Although some performers in filk circles may sing traditional folk songs, it is much more common to hear "filk songs" at such gatherings. Filk songs are a specialized genre and span a wide spectrum. While many filk songs are original lyrics set to original music, many more filk songs consist of lyrics written to existing music and/or lyrics based on characters or worlds created by other people. These practices can potentially impinge on existing intellectual property law protections and thus provide a vehicle for exploring the intersection of intellectual property, community-based norms, and gender. This article explores the intellectual property issues implicated by filk and, through two empirical databases, inquires whether a filker's gender influences his or her attitude towards intellectual property law. Part I begins by setting out a more detailed explanation of filk, including a brief history as well as examples of different types of filk songs. Part II examines the relationship between filk and intellectual property law. Part III, the centerpiece of the article, explores the question asked in the title of this article by discussing the study's methodology, the two databases we created, and the various statistical results generated from those databases. I. FILK AND THE FILK COMMUNITY A. The Origins of the Filk Movement The science fiction and fantasy community is unique in several respects. It is perhaps the only fiction genre that regularly brings authors and fans together, usually for weekend conventions, also known as "cons." For the uninitiated, two basic types of science fiction conventions exist-media conventions and literary conventions. Media conventions are those whose main guests are actors from various movies and television shows. Literary conventions are those whose main guests are the authors who write short stories and novels. Our focus here is on literary conventions, which have 2010] FILK, GENDER & ATTITUDES TOWARD COPYRIGHT 221 existed for decades and which come in all shapes and sizes, ranging from the small local cons bringing together local authors and fans, to regional cons drawing several hundred attendees (and usually 50-100 writers of varying levels of fame), to the World Science Fiction convention, an annual event attracting hundreds of authors and thousands of fans. For a variety of reasons, it emerged that an overlap existed between literary science fiction convention-goers and musicians of various skill levels. These musicians and music-lovers began assembling in the evening after formal convention programming ended to share their music and hold song circles.1 Since many were writers, they began writing lyrics, and the genre of filk emerged as a distinct form of music. It is difficult to define "filk" with any accuracy, except to say it is the music of the science fiction and fantasy community. Perhaps one of the better definitions was offered by Gary McGath, who states that "filk music is a musical movement among fans of science fiction and fantasy fandom and closely related activities, emphasizing content which is related to the genre or its fans, and promoting2 broad participation. Filkers are people who participate in this movement.", The term "filk" is often traced back to a typographical error made by Lee Jacobs, an author for the Spectator Amateur Press Society, who typed "filk music" instead of "folk music" in an article.3 Credit for popularizing the term is usually given to Karen Anderson, and while that may explain the origins of the term, it does not clarify what it means.4 Since filk is all about music, we'll start with a musical explanation, written in one particular style of filk-one that borrows an existing song, discards the original lyrics and writes new, often satirical, lyrics. This song is called (fittingly) What Is This Thing Called Filk?5 and is sung to the tune of The Battle Hymn of the 6 Republic: 1. See Jordin Kare, Filk Music?, SINGOUT MAGAZINE, 1995, available at http://www.interfilk.org/interfilk/singout.htm#Jordin Kare. 2. Gary McGath, Filk: A New Definition, May 13, 2002, http://www.mcgath. com/filkdef html (last visited Sept. 22, 2009). 3. See Jan Mailander et al., Filking 101: The Folk Music of Science Fiction, http://www.filk.com/filkl01.htm (last visited Sept. 22, 2009) (arguing that despite other urban legends, the term "filk" evolved from Jacobs's error in his unpublished article, "The Influence of Science Fiction on Modem American Filk Music"). 4. Lee Gold, Tracking Down the First Deliberate Use of "Filk Song," http://www.nightsong.com/filk/twippledop. 5. Lyrics by Melissa Tatum, available at http://meltatum.wordpress.com. The title What Is This Thing Called Filk? is itself a playful allusion to works like Cole Porter's What Is This Thing Called Love? (1929) and Louie Armstrong's What Is This Thing Called Swing? (1939). 6. The Battle Hymn of the Republic was written by Julia Ward Howe and was published in ATLANTIC MONTHLY in February 1862; the song is set to a tune written around 1855 by William Steffe. It is not clear whether Steffe registered a copyright in the tune, but even if he did, it would likely have expired by 1900, and the tune would then have entered the public domain. See Act of Feb. 3, 1831, ch. 16 §§ 1-2, 4 Stat. 222 JOURNAL OF GENDER, SOCIAL POLICY & THE LAW [Vol. 18:2 My flight was cancelled; I was stuck in town another night. When I showed up at the hotel, you would not believe the sight. I saw Vulcans strumming guitars but the words did not sound right. I heard them call it filk. CHORUS: I'm confused, did you say "filking"? Sorry, did you say a "filk" song? I have never heard of such a thing. What is this thing called filk? A filk song sometimes starts by taking favorite melodies Then it substitutes new lyrics with exquisite irony The resulting song sounds something like a Weird Al parody7 Voila - a new filk song! A filk song sometimes borrows from a favorite universe; Spins a story of adventure and a shore leave quite perverse Sets their exploits to new