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Blog ~> weeklies #42 - Intellectual property in the garden of forking paths

weeklies #42 - Intellectual property in the garden of forking paths

I read the Constitution to respond to a tumblr post about fanfiction A post it note reading "Don't forget your sub" with a sketch of a sub sandwich
Published 2026-04-25
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what i'm reading§

"I got possessed by a MCU yaoi demon and everything I thought I knew about storytelling was existentially destroyed" by @headspace-hotel§

"Transformative media" is endlessly fascinating to me and the author of this post explains the intrigue pretty well.

Constitutional Vagaries§

The sentence known as the "Intellectual Property Clause" of the U.S. Constitution (Article 1, Section 8 Clause 8) states:

The Congress shall have Power... To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries

As Walterscheid[1] discusses, patents and copyright were absent in the Articles of Confederation, but existed in British common law for centuries (p. 10). The Continental Congress advised the nascent states to come up with their own copyright laws, justifying:

[N]othing is more properly a man's own than the fruit of his study, and that the protection and security of literary property would greatly tend to encourage genius, to promote useful discoveries and to the general extension of arts and commerce. (qtd. Waltersheid p. 20.)

"Promote... useful Arts" and "encourage genius" are some vague concepts. Waltersheid wonders why the Framer couldn't have granted Congress management of patents and copyright under other clauses in Article 1 regulating commerce (p. 26-27).

Commerce is a relevant part of the copyright story. In a commodity-based economy, authors can make their bread selling books. Therefore, copyright protects the livelihood of authors. But it becomes ridiculous once commerce makes contact with storytelling. @headspace-hotel puts it well in their post:

Everything in "original fiction" is wildly derivative, but for bizarre legal and cultural reasons, we are forced to obscure or conceal the derivative nature of it.

One situation that shows how poorly storytelling and copyright get along is QUILL INK BOOKS LIMITED v. ABCD GRAPHICS AND DESIGN, the lawsuit where one party tried to copyright Omegaverse tropes[2], which are ostensibly the part of an open-source cultural product developed by dozens or hundreds of authors writing in a commercially marginalized niche.

Consider comic books. Particular characters are reiterated by many custodians into contradictory stories. Rightsholders can churn out hundreds of iterations of the same character, but an "unofficial" take like The People's Joker (2022, dir. Vera Drew) flies in the face of so-called 'intellectual property', facing barriers to distribution[3]. Meanwhile, the MCU canonizes its comic-book iteration with multiverse tropes.

A recent Weird Studies episode discussed Jorge Luis Borges' "The Garden of Forking Paths". The narrator describes a labyrinthine book:

The book is a shapeless mass of contradictory rough drafts. I examined it once upon a time: the hero dies in the third chapter, while in the fourth he is alive.[4]

The book in "Garden" is by a single author, but the description gels perfectly with @headspace-hotel's observation of storytelling:

An idea-space can have multiple mutually exclusive, contradictory stories in it that are all valuable to tell, and the cultural and legal obligation to tell THE single true and exclusive version of a story, to own it and lay claim to it, extinguishes this incredibly vital aspect of the aliveness of storytelling.

I don't know shit about the MCU but I struggle to conceive of the entertainment-industrial complex adequately engaging with the layered, interconnected nature of fanfic.

New-Media Autofiction§

When rubbernecking in the Timothe Chalamet/Armie Hammer RPF tag on tumblr, I found some people making facsimiles Instagram screenshots where, through strategic cropping, the faces of the subjects were obscured and the reader/viewer is given space the fantasize about who may be with the imagined Chalamet in this post-- perhaps themself?

I found this to be a novel form a fanfic, a "New-Media Autofiction". Is it a little weird? Yeah. But fanfic is desire: the desire for fantasy, for narrative completion, character depth, unexplored eroticism, or self-recognition. On one hand, capitalism exploits the storytelling tradition and our human connection with stories and characters (fictional and real) in particular to drive consumption; on the other hand, 'intellectual property' gate-keeps who may benefit from such connections.

what i'm listening to§

maia arson crimew dj set§

baltic coffee shop at 8am vibes

what i'm watching§

The Sopranos§

gabagool

what i'm playing§

FaceMiner§

Evil cookie clicker.

what i'm working on§

table of contents custom element§

I'm working on a rip off of those nice Tables of Contents some websites have that show which section you're in, and have a nice smooth-scrolling effect when you click a heading.

something i liked§

Amish Granola§

I bought some granola from the Amish and it's good as hell. Mixing it with some berries and yogurt for breakfast.

After encountering an Amish-run eatery that serves all the same artery-clogging fare as those in my home state, I've developed a conspiracy theory that the Amish endgame is to pump out bacon-bit donuts until the infidels keel over from heart disease, therefore instituting the God's kingdom on Earth.

something i hated§

samba permissions§

I'm running Nextcloud on a server and trying to get it to serve files from a Samba share. There's some esoteric permissions issues between the remote Samba share and the Docker container that's making this a nightmare.

a picture:§

A post it note reading "Don't forget your sub" with a sketch of a sub sandwich. Reminder note for myself not to leave my sub in the staff fridge.


  1. Walterscheid, Edward C., "To Promote the Progress of Science and Useful Arts: The Background and Origin of the Intellectual Property Clause of the United States Constitution", Journal of Intellectual Property Law, vol. 2, no. 1, Fall 1994 ↩︎

  2. Alter, Alexandra. "A Feud in Wolf-Kink Erotica Raises a Deep Legal Question", 23 May 2020, https://web.archive.org/web/20210226003148/https://www.nytimes.com/2020/05/23/business/omegaverse-erotica-copyright.html ↩︎

  3. https://en.wikipedia.org/wiki/The_People%27s_Joker#Release ↩︎

  4. Borges, Jorge Luis, "The Garden of Forking Paths". 1941, translated 1948. https://archive.org/stream/TheGardenOfForkingPathsJorgeLuisBorges1941/The-Garden-of-Forking-Paths-Jorge-Luis-Borges-1941_djvu.txt ↩︎