We had an interesting case example about the boundaries of fanfiction today when the popular online cartoonist, Adam Ellis, claimed the short film Keratin plagiarized his own work. I think this is a fascinating example of the way in which the delineation of ownership sets the boundaries of fanfiction, because on one hand, it’s trivially evident that Keratin is a fan work.

James Andrew MacKenzie Wilson does not appear to have any prior film credits to his name, while the other person credited with the Keratin short (Andrew Butler) has only a few prior credits. This short, which has been working the festival circuit, seemed like an opportunity for two early-career directors to demonstrate what they can do with a camera and with actors.

But of course they didn’t pay for their storyboard. Instead they chose a comic they were clearly fond of and used it as their storyboard. As I talked about previously, fanfiction is the act of creating art in dialog with and derivative art for which the artist cannot claim ownership. What problematizes this here is that the artists behind the film did, in fact, claim ownership of Keratin though not of the Ellis storyboard that obviously informed it.

Now I’m seeing a lot of the same people who were rushing to the defense of fanfiction during the recent discourse on the topic, expressing outrage at the uncredited use of Ellis’ art as a storyboard. And I get it, because these two men are building prestige, and possibly making money, off the back of Ellis’ creative labour. Their work is clearly derivative.

However derivation is a natural component of the artistic process. We might as well complain that Goya’s work was derivative of Reubens.

In both Goya’s depiction of Saturn devouring his son and that of Reubens, the monstrous father looms above his child-prey in the panel. Both are cloaked in darkness, the ground beneath their feet indistinct, the sky a void. Saturn, in both instances, show a loathsome muscular physicality, but in both cases his genitals are concealed, abstracting Saturn from the generative aspect of the father. He is the father as unmaker, as the terrible presence that overcomes the child and leaves him naked and consumed.

Our only principal difference is a change in the treatment of the son. For Reubens, the son is a subject, his abjection and terror are a shocking central motif of the frame. For Goya the son is an object, reduced to just so much meat to be consumed.

In many art history classes, Goya’s painting is a central piece of study. Our study of Reubens is more likely to focus on his depiction of the female form. Goya is the master of the image of the devouring father in his darkness. Reubens the master of the fecund and generative. This could be seen as appropriate considering the way Goya consumes Reubens’ motifs in the creation of his monstrous masterpiece.

And through this process of derivation, through this act of grazing upon the intellectual commons sowed by Reubens, Goya created a truly great work of art. And at this point I’ll pause to describe my criterion for calling Goya’s work great; it certainly doesn’t lie in the technical excellence of the work. In every technical manner, Reubens is the superior painter, the greater craftsman.

But Goya’s work, the manic wildness in the eyes of Saturn, the way that his divine child has been reduced to a cadaver, an object devoid of hands or of a head, of any of the markers of subjectivity we expect, creates, in the depiction of Saturn, that which would not be but for the art. How could we come to understand Saturn in the way we do through Goya’s art if we did not see Goya’s painting?

So we can do away with the idea that a work of art being derivative invalidates it as a work of art. But there is a question of boundaries here beyond the question of ownership. And that is this: is a storyboard part of a film or is a film a work of art derived from a storyboard, a distinct artistic moment?

I found a page recently that contains several samples of storyboards from famous films. I want to look at one specific example from it here for a moment.

Even in this very limited set, we can see both how the storyboard realized the vision of the film but also how it differed from it. The title of the film in the opening crawl was changed, the text became flat against a star field rather than the three-dimensional objects of the first panel. The design of C3P0 changed, became more mechanical and obviously artificial between storyboard and film. It’s evident that the storyboard is art. And it is evident that the storyboard informs the art of the film; but is the storyboard a being-in-itself or is it simply one of the faces Star Wars presents us? If it is, in fact, a part of Star Wars and not an independent artwork, how do we address the changes that occur in the process of derivation?

But of course, it was never entirely about the independence of the art so much as it was about the ownership of the art. So by the same token, who has the moral right to Star Wars: George Lucas or Joe Johnson and Alex Tavoularis, who drew the storyboards?

And furthermore, does the fact that the storyboards to Star Wars are sold by a book, an object separate from the movie, have any impact on the extent to which the storyboard is a being-in-itself rather than a being-for-another? Should we consider then the author of the storyboard to be Lucasfilm LTD? Is the company then an independent being? And if so did it die when it was consumed by Disney? How, aside from the artificiality of ownership contract can we assign the right to claim Star Wars as a work-that-is-theirs to Disney and not to Tavoluaris?

Who owns an original? Who owns a derivative? Where do those boundaries lie? I don’t suspect that any of these questions will be answered today. I am frustrated that ownership must so often intrude upon art. It’s trivially obvious that derivation and transformation play a role in the creation of art: derivation as transformation is one of the principal tools of artistic endeavor, and as I discussed in a previous essay, transformation is first a process of unmaking. If the original object of artistic inspiration is unmade in the process of transformation, any derivation is to be considered a new thing: the phoenix arising from the ashes of the death of the original work. But capital doesn’t recognize these patterns of creation and destruction. Instead it recognizes only the contract and the right to own. Capital wants to hold everything in stasis.

Ultimately this is a dispute over three questions in the realm of the world we live in, the world of capital’s boundaries. The first is legal. Is Keratin sufficiently transformative to survive litigation through the mechanism of fair use? I am not a lawyer and must carefully state that this is not legal advice, but my instinct is that, yes, it is transformative. It is a work in an entirely different medium. The distance between the comic and the film is far vaster than that between Reubens and Goya.

The second question: does Ellis have a moral right to the work? This one I am uncertain of for the same reason I question who holds the moral right to Star Wars.

The third question: should Ellis be paid? This is, of course, distinct from the legal question of must Ellis be paid. And this is one where a fair moral argument could be held in either direction. However a word of caution I’d advise commentariat on here: please consider the extent to which this situation differs from Twilight and Thirty Shades of Grey. In each case, one artist took the work of another and unmade it in a transformative act into the ground for new art. In each case, the derivation is clear. If not for Stephanie Meyer, there would be no E.L. James.

If you feel E.L. James had no ethical requirement to pay Stephanie Meyers for her transformative-derivative work, you should probably err likewise here, notwithstanding Ellis’ popularity. And meanwhile, perhaps we should reserve or outrage for an economic system that pits artists against themselves and their own artistic impulses in the name of carefully delineated boundaries of ownership.