Intellectual Property Law and the Fan - A Primer

[shadowkat]

[I originally posted a short version of this as a response to coffeeandink lengthy analysis of a recent Harry Potter fanfic scandal regarding plagrism. For a deeper understanding of that scandal or plagirism go to that post. This one is about how fanfic, icons, vids, screen shot fall under copyright law and the extent to which, if any, they are considered copyright infringement. I updated it to include the Tasini court case, which I can't believe I forgot - it's at the end of the history section. Please note, I altered the section on Real Person Fanfic after doing a bit more research. You actually have less leeway here as opposed to more - due to libel and defamation laws - which do come into play here. Also note that my understanding of libel and defamation laws is fairly simplistic.]

Fandom and Intellectual Property Law…

Fanfic is a foggy area copyright wise, but then so is intellectual property law. People do not agree and US Copyright Law has been changed several times – there’s the 1976 Act, the amended act of 1978, and again in 1988 with the Berne Convention Implementation Act of 1988, the Sonny Bono Copyright Extension Act in 1998 (or Mickey Mouse Protection Act)(http://en.wikipedia.org/wiki/Sonny_Bono_Copyright_Term_Extension_Act, the World Copyright Act), The WIPO Copyright Treaty of 1996, The European Copyright Directive and finally the Digital Millennium Copyright Act of 1998, – which was the most controversial and went through multiple drafts before being signed by the President on October 28,1998.


A Little Bit of History

I remember back in 1996-2000, being on two list-serves, one went to a combo of Archivist and Library Association members around the Globe, but was mostly US based, and one an Intellectual Property Lawyer's list serve - regarding the legalities relating to different types of derivative works.

This was when the internet was just beginning to take off, before live journal existed or we had such things as blogs. Discussion boards were rudimentary and IM Messaging non-existent. The legal minds on the list-serves were worried that the internet would make it easier for people to steal or swipe intellectual property, cut and past links and content, manipulate images, and it would be impossible to track, police or govern. The Internet felt like an the perfect device for intellectual property theft. They were so worried that they kept trying to pass World Copyright Acts regarding the internet and finally managed to get some language into the European Copyright Directive and the US version - Digital Millennium Copyright Act – these were implementations of laws from the World Intellectual Property Organization Copyright Treaty of 1996. The Sonny Bono Copyright Extension is the other law that US put into place to implement the WIPO Copyright Treaty. Doing so, made it possible for the countries who had implemented the treaty to respect US Copyright Law and vice versa. I think I saw four or five versions of the Treaty, the Directive, and the Millennium Act before they were signed into law. And they were not agreed to by all the nations – this is important. (I may be wrong, but I think Germany may have been one of the hold-outs along with, of course, Asia, which posed obvious issues regarding international law.) The test was – where is the ISP address originating from and is the content being distributed on the site originating from that country or did the content originate in another country protected under the World Act and was put on the site without permission? Sounds easy to prove, but it is hard to police and enforce – since the person committing the infringement is protected under his/her country’s laws and jurisdiction. Forcing that country to respect the laws of another country is not as easy as it sounds. The reason the US passed the two laws it did and Europe passed its directive was to ensure they could protect their intellectual property outside their own country – which had not been a huge problem until the internet took off in 1998 and DVD’s provided people with the ability to download and copy huge amounts of content. (See:http://en.wikipedia.org/wiki/WIPO_Copyright_Treaty – for details.)

At the time, the other list-serve I was on, had formed a strong coalition against the Digital Millennium Copyright Act , the WIPO Copyright Treaty, the Sonny Bono Extension, and the European Directive - this coalition was made-up largely of Information professionals, including the American Library Association, the International Association of Archivists, amongst others. Their principal concern was that little clause entitled "FAIR USE". They argued, that if you put braces on the internet, police it too heavily, all in order to protect "property" - you will prevent people from accessing information - or will restrict information to a privileged few. They also argued that you should not restrict creative expression, people borrow from one another. And there is a fine line between "stealing" someone else's work in order to pass it off as one's own and being inspired by that work to create something as a comment on it, an entirely new piece, a criticism, a parody, or even marketing that work to a new audience. The slippery slope argument.

There's one more copyright related event worth mentioning here. New York Times vs. Tasini - is a Supreme Court Case that was brought by freelance writers against the New York Times and other publishers placing content on the database. Tasini claimed that writers were being denied a portion of the royalities for work that they had written for the New York Times. They owned the copyright on that work and the New York Times was selling/posting it without their permission via the internet, depriving them of the ability to resell the work or get additional revenue. The Court found in favor of Tasini and stated that while New York Times was correct in stating the writers were their employees at the time, the freelance writer sold partial rights, not full rights to the Times. Therefore the Times had to pay them royalties for posting on the net and could not do it for free. This case prevented database providers such as Lexis Nexus, my own company, and others from distributing journal and magazine and newspaper articles that were not owned by the publication, but were still owned by the writers. It stated that even though the freelance writer's work was part of the collaborative work or a collection, the writer retained rights in his/her piece under Copyright Law, since the piece could be viewed separately and understood separately from the whole. Tasini is the reason that you have to subscribe to the New York Times Web Site and pay a certain amount to get access to specific authors articles. Now there is a difference between academic journals and news papers and magazines - when an academic sells an article - they will most often sell all rights to the publication or if the publication is associated with their university, it will not only be full rights but also exclusive. Freelance writers for online zines, New York Times, Time Magazine, etc - will only give first time or second time serial rights. They want the ability to republish their piece elsewhere. Tasini changed how many online reference services did business and explains why you still have buy the print version to get access to certain articles. (For the actual opinion, go here:http://supct.law.cornell.edu/supct/html/00-201.ZO.html)

I updated this article to include the Tasini case because it demonstrates how case law interprets copyright statutes and makes a practice that may have seemed legal under the statute, illegal under it.





Why the Heck Should You Believe Me?

In 1994, I graduated from Law School in the US. I passed the Bar in Kansas that same year. I also took a course in Intellectual Property Law taught by an expert in the field. While I have chosen not to practice as an attorney, I have worked in copyright law and with several copyright and intellectual property attorneys.

From 1996-2002 when internet copyright law was still being figured out and most of the acts regarding it were passed or discussed, I worked for a library reference publishing company and part of my job was to police the internet for copyright infringements, as well as informing the company of ways to protect the content that it placed on an online database accessible to the public. I conducted legal research, wrote a copyright policy regarding content distribution, explained copyright law to customers, researched and registered trademarks, and acquired rights to journal, periodical, newspaper, and textbook content.

One of my duties was to figure out how to ensure people did not cut and past entire articles and distribute them in list-serves, costing the author of the article revenue? And convince the publishers that I acquired content from that people could not do this using the company’s databases. All sorts of methods were created - from electronic watermarks, to devices that made it impossible for people to cut and past or so they hoped. In fact, the Digital Millennium Copyright Law specifically states that it is a crime for people to hack around devices used by software publishers to keep their programs from being copied and prohibits the production, marketing or sales of a product or service designed to circumvent these protections. In 2000, the Act restricted the import, distribution and sale of analog video cassette recorders and camcorders that don’t have a certain type of copyright proof technology.(*Patent, Copyright and Trademark by Stephen Elias, Nolo Books, 3rd Edition,1999 with updates by Nolo.com) Web sites created PDF read only documents that can’t be copied or cut from. Special watermarks appear much like what you might find on a dollar bill indicating the original owner. Firms sprouted up over night on the net selling all sorts of copyright protection software.




"The Blurry World of Fan-fiction & Copyright Law: Is it really an infringement?"

When I first discovered fan-fiction in 2001 - I had a series of discussions about it at work with a colleague, who had a background in subsidiary rights, foreign rights and licensing but not a law degree or any coursework in Intellectual Property Law nor was she active on list-serves. Her knowledge came from the Trade Book World or publishers of fictional and non-fictional novels. My colleague insisted fan-fiction was illegal. I informed her that in theory that may be so, but there's a loop-hole, called the Fair Use Doctrine - that due to my position, I'd become a bit of an expert on. The loop-hole provides a nifty little test for copyright infringement :

Does the work infringe on the original creator’s ability to collect revenue from the original work?

Does it take the place of that work?

Does it infringe on the original author's copyright, blurring it, making it fair game?

And is the original work copyrightable to begin with?

Also is the work a true "derivative" of the original or in reality, a comment on it? a review? a criticism? or a parody? (Examples include “Wind Gone Wrong” – a parody and criticism of Gone With The Wind, Book/Movie/Television Reviews, Academic Criticism, An article on Buffy the Vampire Slayer – all utilizing content from the source in order to make a point or comment on it.

Is it just taking an idea from the original piece? Say a trope or character archetype? (An example - Robin McKinely's Sunshine - some people think this is fan-fic of Buffy the Vampire The Slayer (BTVS), or taking ideas from BTVS - if it is? So what. It is original in all respects. Another example - James Butcher in the Dresden Files creates a character that is described as being similar to one in BTVS - again, not infringement. Or how about “The Wide Sagrasso Sea” – the story of Rochester’s first wife from Jane Eyre or “Ahab’s Wife” – both are what might be considered “fanfic” but neigthe infringe on the copyright of the original piece. If the original piece is in the public domain – then of course it’s not an issue at all. Example – books based on Jane Austen’s Pride and Prejudice are not copyright infringements. Or if the estate agreed and commissioned a sequel – such as Scarlette the published sequel to Gone with the Wind.)

Finally, is the work being used for educational uses - such as in an archive or library? Is it advertising or marketing the work?

Then there's the amount of a work that can be used without permission depending on use and depending on the size of the original work. The longer the work is – the more you can use to make a point, the shorter – much less. And the test is more or less common sense – are you taking a substantial amount, to the degree that someone could read your work or your piece and not have to read or get the original? There was a German site that for a while got away with providing the complete television scripts to TV shows for free. This was a clear infringement of copyright law because the copyright holder was attempting to sell the same scripts. (Why buy it if you can download it?)

Is the work in the public domain? The length of time it takes a work to enter the public domain varies - it depends on when it was written, when the author died and which law it operates under. For instance, it takes longer for a work that was published after 1978 to enter the public domain then one before 1978. The period used to be life plus 50, now to comply with the WIPO Treaty, it is life plus 75. For years, UK and other countries got access to US works before the US got access to UK works. Also people in the UK and elsewhere were hesitant to publish a work first in the US or get a US copyright due to the fact that the protection wasn’t as long. Sonny Bono changed all that in 1998 with his extension.

So you are no doubt asking yourself – how do I know if my fanfic infringes on copyright law?

Well. Answer these questions:

1. Are you making money off of it? If you are then has the original source entered the public domain? If not, is your fanfic a parody? A completely different concept that merely borrows a few ideas but does not in any way a derivative, adaptation, or continuation of the original? If you were the original creator of this work – would you feel that your fanfic could deprive you of revenue if published or infringe on how the original creator wished the characters to be seen? (Ie. A slash fanfic being sold for money is an infringement of copyright law if the work is not in the public domain.) Another way of asking this question is:”the effect of the use upon the potential market for, or value of, the copyrighted work”.

2. How much of the original work have you co-opted? And have you gotten permission? Are you using lots of dialogue and screen shots from the original work? Or “The amount and substantiality of the portion used in relation to the copyrighted work as a whole.”

3. How is the fanfic being distributed? Are people paying to read it? Is it merely on your website or blog? Did you put it on a magazine that others buy? Is it being sold as part of a compilation?

4. Is it a novel tie-in commissioned by the copyright owner? If so, not really fanfic per se and not an infringement.

5. Is it parody? Or satire? Both are allowable under copyright law.

6. Is it a derivative work – such as say a computer game based on BTVS or a novel based on the series – that requires copyright permission.

Note: Under a 1992 Amendment, the fair use doctrine applies to published and unpublished works.

What about Real Person Fanfic?

This is a dicey area. You are okay under copyright law, since copyright law does not really come into play here. You are not okay under libel and defamation law and the penalities under defamation and libel law are higher than copyright. Copyright Law has a fine and an injunction, you might even get charged with compensatory damages. Libel and defamation could contain criminal and civil charges depending on the nature of the defamation and whether "malice" was intended. And there's another dicey little law you might want to take into account - "the right to publicity" or the person's ownership of their likeness and name and right to refuse unauthorized use of that likeness or name to sell things. The Right to Publicity is a statute that varies from state to state. Add to the mix, the "right to privacy". And you have a legal cocktail for disaster. Real Person Fanfic could be dangerous and the risk you are taking could be far greater than with ordinary fanfic. But not under copyright law.

People do not own copyrights or trademarks on their names. They do however have "a right to publicity" in the name. A famous case was Spike Lee vs. Spike TV (go here for a lawyer's perspective on that case: http://writ.news.findlaw.com/hilden/20030609.html) - where Spike Lee claimed that Spike TV would be confused with his name and he would appear to be supporting it. His claim was that Spike TV was using his name to sell or advertise a product. The New York Supreme Court supported Lee's claim. The only reason Spike TV won, was Spike Jonz was brought aboard as a defendent and they ended up settling. Normally you can't keep someone from using your name, unless of course your name has become part of a product - ie. corporate names such as Xerox are an example. For actors - their names are part of who they are - Elizabeth Taylor, Carey Grant, James Dean, Marilyn Monroe - all these names are trademarked by those actors and estates. Yes, you can call your kid Elizabeth or Carey or Jimmy. But you have to be careful not to cause confusion with the brand. Not all courts agree. After all we have "Jimmy Dean Sausage" and we have "Bush Barbecue Sauce". It comes into play if you are an actor who has the same name or a rival sausage company with the same name - the test is - is the consumer confused. Do they think that the James Dean is playing the role, when he's not, someone else with the same name is.

So what does this have to do with fanfic? If you tarnish the trademark or brand name - under the right to publicity, the person might sue you. However - It depends on how you do it. Parody and satire are permitted under the First Amendment and the Fair Use Doctrine. Fanfic in of itself is considered free speech. And people usually don't have trademarks in their names so much as in the whole package that their name represents. James Marsters for example has rights in his name to the extent that he is promoting it as a performer. He can't stop someone named Marsters, naming their kid James. Or a novelist from naming a character James Marsters - as long as the character is clearly not him (if it's clearly him - you are actually moving into "libel" territory which is another issue). And he can't stop that kid with his name from pursuing a career in acting. The kid could however be encouraged to find a different name to prevent confusion. What he can do is stop someone from using his name to make money off of his name, likeness or image. And his rights depend on which state and or country the action is taking place.

In her article on findlaw.com regarding the likeness of Dobby the house elf to Russian President Vladmir Putin, Julie Holden states: "A violation of the right is defined by California statute as an unauthorized use of a person's "name, voice, signature, photograph, or likeness, in any manner," for "purposes of advertising or selling." That right (which also comes from California's common law) is the reason that a company cannot, for example, just put Putin's name and face - or yours or mine, for that matter - on a bottle of vodka without consent.

Note - the words, for the purposes of advertising or selling. I doubt you'll get sued under the right to publicity law if you write fanfic about Marsters and Boreanze. However, if you sell the fanfic, then the rules change. You are now making a profit off of the actors names and likenesses without their authorization. Since they get money selling their name and likeness to people, specifically associated with the Television Characters they played, they can attempt to sue you over the infringement. But it won't be easy, as stated here in an article found on slate.com regarding Jessica Lynch, a real person in which a television network made a semi-fictional movie about:

The so-called "right of publicity" does give people a limited
right to control commercial use of their names, likenesses,
and identities. But the right doesn't extend to news reporting,
biography, fiction, and most entertainment, or to the advertising
of such works. Generally, the right of publicity applies only to
commercial advertising of other products and to merchandising. So,
NBC could make a movie about Lynch without her permission,
but it probably couldn't sell Jessica Lynch action figures.

Slate: Does Pfc. Jessica Lynch Own the Movie Rights to Her Life?
http://www.slate.com/id/2081488/

Generally speaking, it's only when you start making money off of their names and likenesses, things get dicey. So why doesn't Marsters sue you if you draw him and put his picture on a shirt? Well he can actually. If you start a shop selling Marsters t-shirts and make a living off of it, he can stop you. What he can't do is sue you for doing the drawing and selling it as "art". Or, for that matter stop you from writing an unofficial biography based on his life.

For more information on the "Right to Publicity" go here: http://www.publaw.com/rightpriv.html

That's the copyright/trademark/right to publicity side of the game. Now let's jump across the bench to libel and the right to privacy, two areas that I'm not very comfortable in and have not studied since 1994, so I'm relying on a little recent research and a lot of common sense. Real Person Fic - is weird because it involves libel. And libel is a separate area of the law from copyright. It has different tests. For legal advice on these areas, I would consult an attorney who specializes in the field.

There's a test for libel which can be found here:

Publishers Marketing Association: Alan J. Kaufman: Defining Libel
in Fiction
http://www.pma-online.org/scripts/shownews.cfm?id=559

First Amendment Center: David L. Hudson, Jr.: Libel in Fiction
http://www.firstamendmentcenter.org/Speech/arts/topic.aspx?topic=libel_fiction

Libel is more complicated. Each state (and the District of
Columbia) has its own libel laws. And, no, fiction is not exempt,
even if you've changed the name and hair color of an otherwise
identifiable person. "The best defense to libel," say the authors,
"is verifiable truth." Included: detailed checklists -- concerning
fair use, copyright protection, copyright permission, libel,
and "media perils" insurance -- and sample forms for requesting
permissions, obtaining releases, summarizing permissions, and
writing libel disclaimers.

The Copyright Permission and Libel Handbook: Editoral Review by Jane Steinberg
http://www.amazon.com/gp/product/0471146544/103-8257266-7362234?n=283155

The test for libel is whether the plaintiff can claim that you have disparaged his character in some way. Have you invaded his privacy? Have you embarrassed him or her for that matter in public? Have you tarnished their image? The burden rests on the plaintiff. While there has been real person fiction published, all of it has been about people who are long dead. A dead person cannot be defamed, only a living person can. To my knowledge no one has published fanfiction on people who are still alive. Nor can I imagine a publisher doing so.

While it is highly unlikely Marsters and Boreanze are going to sue you if you write slash fanfic about them, they will probably do it if you publish it and by publishing, I mean for revenue - not just posting on your live journal or fan website. My suggestion? Tread very carefully. And if you want to do anything with it - such as create a website devoted to real person fanfic that is advertised? You may want to consult an attorney whose speciality is in libel and defamation law, just to be safe. (***This is basically my legal disclaimer, I am not licensed to give you legal advice, so please do not quote me if someone sues you!)





Effect of Trademark Law on Fanfic

Trademark law is a separate kettle of fish and with different tests. Note trademark law should not be confused with "right to publicity" (see above under real person fanfic).

It is harder to register a trademark than a copyright in something. In trademark law - you have to prove that the trademark is original, and not something used everyday or common. An example: Reader's Guide to Periodical Literature - an incredibly difficult trademark to register, I had to prove it was distinctive, which involved sending tons of supporting documentation to the trademark office. We could not register "Reader's Guide" obviously. Once you get the thing registered - you have to fight to make sure it stays protected. This means keeping people from making it a part of everyday speech or co-opting it. "Kleenex" for instance - fought hard to make others use "tissues", just as "Xerox" fought hard to force people to say "copy machine" in advertisements. It's tough because if it enters everyday lingo - you've done your job as a marketing person, but you lose the trademark. But because of the fear of losing a trademark – movie characters ask to copy something not Xerox it. And when someone wants to blue their nose they ask for a “tissue”.

Trade-marking fictional characters? Even harder.

You can't trademark a title and you cannot trademark a person's name. Book titles can’t be trademarked. Television titles can but within reason and only if you prove distinctiveness. You have to prove distinction and when trade-marking the character or title of the TV show - you have to link it to the work. Examples: "Buffy the Vampire Slayer" can be and is trademarked by Fox. That is a distinctive title and phrase. Angel on the other hand cannot be trademarked. It is not distinctive and the name has been used in numerous series and movies. "Angel the Series" - maybe. You also can't trademark "MASH" - that's an army term. But in association with the TV series? Sure. M*A*S*H If someone for instance wants to do a theme bar based on M*A*S*H or CHEERS - they have to get permission. If they want to use the name in an instance that has zip to do with those shows, no permission. If they decide to list the shows in a novel - Tina was watching M*A*S*H and had a crush on the character Hawkeye Pierce - no permission is needed. Now if she enters the TV show and she and Hawkeye have an affair – and the writer co-opts dialogue and stories from the show –and the depiction does not fit parody – then we are treading into copyright infringement. Most of this is really "common sense" but as we all know, not everyone has common sense.




Screen-shots, Images, and Icons

Images - photographic, paintings, drawings, films, and computer generated works are another dicey sub-category of copyright law.

First off it is harder to get rights to distribute or use images than text. I know I tried to get them. That group protects their copyright like they’d protect their first born child, with an iron fist. So you are more likely to get sued distributing an image than text. But, images are tricky. It depends on the image and how you are using it.

It is not copyright infringement to draw Spike or Buffy or draw a picture of James Marsters. Or even do a photograph collage of the characters switching body parts and heads around. They may hate it, but it ain’t infringement. Putting Gellar’s head on a nude model and telling the world it is her is not necessarily copyright infringement so much as libel and defamation of character – and she can sue you under those grounds. She does not own the copyright on her photographic image or necessarily her name. Any more than you or I own ours. Madonna can’t stop you from calling your kid Madonna any more than Sarah Michelle Geller can do it. They can stop you from hurting their image with gossip, but only to an extent. It is copyright infringement to sell a TV shirt with Spike on the front, his name and “Buffy the Vampire Slayer” underneath, but not copyright infringement with just a picture of “Spike” that you created and was not taken directly from another person's work. It all goes back to that test - are you taking revenue out of someone else's pocket? (ie. Fox has a competing Spike TV shirt and people are buying yours instead?) Same deal with book covers - say you wrote a series of essays on Buffy and want to use a screenshot from the show. You can't without Fox's permission. You can state: Essays on Buffy the Vampire Slayer with a black background and no problem. You can also draw the cover art. But you cannot put a photo of Sarah Michelle Gellar or James Marsters on the cover taken from the show or one taken by the actors and given to you.

Another perhaps better example - someone online recently posted a shirt they'd created with ironed on drawings of characters from Firefly as well as imagery taken from the show Firefly and the film Serenity. All of it was their own artwork and they got the idea from a shirt one of the characters wore on the series. Is this infringement? No. Can they sell it or show it in an art gallery? Yes. Of course they can. Just as Andy Warhol could do his paintings of Marilyn Monroe. It's not a derivative work or an adaptation. It is an innovative work distinct from the original. Note this is very different from selling a t-shirt with a photograph of Marsters as Spike, with his name on the front, BTVS under it, and a quote from the show on the back, which is infringement.

Same deal with posting photos to your website. If you drew the image? Created a collage of drawn or manipulated images? Not a problem. If you downloaded it via Bit Torrent and it was from the TV show -yes that is a problem. An even bigger one if you did not pay for the download and took it from a pirate site, but that's another issue. If you changed the image from that download to a degree in which it is a parody of the original or clearly something original in of itself - you have leeway.

The posting of pics, even slightly manipulated ones, to websites - got many fan-sites in trouble. Not all though. There's a reason for that - common sense again - it would be an incredibly stupid lawyer with lots of time on his hands to go after every single website that posts images from tv shows - not only do you risk pissing off fans, but you also risk losing free marketing and advertising for the show. This is why lawyers don't go after icon creators. Yeah, that Spike icon you made probably isn't legal under copyright law, but honestly it isn't hurting the show's revenue -if anything it's helping it, so no, we aren't going to force you to cease and desist. Same deal with my Areyn Sun icon or icons for Alias.

The fan-sites that were scolded were passing around spoilers - which in of themselves aren't copyrightable, what was copyrightable was the pieces of script, screen-shots, and film taken from the tv show before the tv show aired or was released to an audience. Example – one spoiler site posted a photo of Willow as DarkWillow prior to the airing of the episode in which she had become DarkWillow. Another posted portions of actual dialogue. That was the infringement and why a popular spoiler site almost got shut down and why others did. People thought it was the stuff they wrote, ie. essays, fanfic, spoiler spec. No. It was copyrighted material - teleplays, screen shots, etc. And you can use lines of dialogue from a TV show to make a point in an essay, to write a review, to even discuss and to create fanfic from - what you can't do is take a substantial amount of dialogue so you are basically giving the script or original work away for free or selling under your name.

You can also use screen-shots from a TV show to write a review or do an academic analysis for educational purposes – but you have to be prepared to prove it. Sometimes it is fairly obvious. Example: the web site All Things Philosophical About Buffy The Vampire Slayer (ATPO)– is clearly analyzing for educational purposes - the reviews include philosophical quotes, the site is linked to from slayage.tv – an academic site that publishes an academic journal. Buffy Cross and Stake (B C& S)on the other hand was set up as a spoiler discussion board and posts mostly fanfic and fun items. There is scholarly discussion but it is not the point of the board. Lawyers went after BC & S in 2003, they would never go after ATPO. Another example is Tea At The Ford - a web site that has two things in it's favor - one - it is largely private and two, it is clearly academic in nature.The private bit ensures that the public does not have access to everything it posts. The academic bit ensures the majority of its screenshots are used for educational purposes or to critique and or review the show, which is permissible under Fair Use. What they and other sites like them have to be careful of is how much they use - do they use screenshots from an entire espisode to the extent that you do not need to buy the DVD or watch an episode? The test is - can the amount of content you've appropriated for your analysis be seen as an alternative to getting the original? Does it take the original's place? And if so, to what degree?

What about Vidding?

Vidding is weird. For those who have no clue what I’m talking about – it is basically creating a mini music video using screen shots from a tv show and a popular song. I honestly think tv shows and musicians look at it as free advertising. So far it only increases interest in the original work and the music. It has not robbed the creator of revenue. Nor polluted the trademark. The creator of the vid either is parodying the original, creating a homage to it, or a teaser to entice others - much like someone making a movie trailer. So vids possibly fall under the marketing exclusion. At any rate - you'd have to be dumb to sue someone who is bringing you an audience. Copyright law on its face might call vidding illegal, but it's not if you analyze the cost and benefits under the statute.

"In conclusion or just apply the common sense test."

Intellectual Property Law is an inexact science that keeps changing as technology and works of art change. The struggle society has with it is to ensure it protects property without infringing on other rights, such as education, information, creativity, freedom of expression, advertising, and the person's ability to play with and enjoy the original work. Not an easy thing to do. That's why when you read case law on the topic it seems to be contradictory at times. It's not; you have to look at the issue on a case by case basis.

And the best test is plain old fashioned common sense. Put yourself in the original copyright holder’s shoes – would you have problems with what you are doing?

Comments

[ann1962]

This is excellent! Thank you.

[atpolittlebit.livejournal.com]

I think what was the most mind-boggling to me were the numbers of people who described themselves as writers and/or who aspired to be professionl writers simply do not understand the difference between copyright and plagiarism, or that the two are not necessarily related. Yes, plagiarizing a work still undfer copyright protection (and by that I mean copying and using portions without specific citation) is violating the copyright. Using it with citation but without permission may still be violating the copyright. Copying portions of any work without citing the sourcer is plagiarism and it doesn't matter whether the work is the newest novel to hit the bestseller lists or "Beowulf" because there are no time limitations on plagiarism.

Add to that the misconception that the rules of writing as they apply to plagiarism and copyright don't apply to fanfic and my eyerolling approaches dangerous levels. If one is writing a fanfic and it never, ever sees the light of day, then maybe. Privacy protects a wide range of 'sins'. But once it gets published (and yes, as you know, posting on the Internet is publishing) it has seen the light of day, and every rule of legal and ethical writing now applies.

Unfortunately it seems that the common sense test has been replaced in some cases by "but it's fanfic! It doesn't matter!!" And even more often by 'I found the fanfic very enjoyable and therefore the violations of copyright and the plagiarism I was quite aware of is of no importance to me." (More often expressed as "OMGWTF!!! I LUV THIS FIC AND WTFBBQ!! U R JUST JELLUS!!!" but still).

*sigh*

[embers-log.livejournal.com]

Wow, thank you, this is really very informative and helpful. Of course it doesn't help that Cafe Press won't let me sell my drawings at a 'shop' on their site. They think this:
contains to much copyrighted material even though I didn't base it on any screencaps, include any names, and the four horseman of the Apocolypse never actually appeared on the show... :(

[midnightsjane.livejournal.com]

That was fascinating! Thanks for the clear and interesting explanation, S'Kat.

[cactuswatcher.livejournal.com]

It's interesting about ATPo, but I think you are absolutely right. Masquerade's approach to the subject in the main site is fairly clear. Even if it is not in the form of an academic publication, it certainly is analysis immediately useful for academic purposes, not a retransmission of the original of any sort.

[shadowkat67.livejournal.com]

No this picture isn't infringement.

People are weird about copyright.

I've seen pop-culture art that has more infringing material. This is a comment on the show not a reproduction of what was in the show.

Linked here via friend.

[imadra-blue.livejournal.com]

This is an excellent, educational, and informative post. Very invaluable to members of fandom in all strata of interest. Thank you for sharing!

[embers-log.livejournal.com]

I really appreciate the reassurance, the response from Cafe Press was making me feel a little paranoid.... It doesn't help that I had had an Art teacher back in High School who was death to plagerism and really put the fear of God in all of us if we took any ideas from other works of art.

[fara-shimbo.livejournal.com]

Excellent article! Do you mind if I link to it from my blog?

[shadowkat67.livejournal.com]

Not at all. Link away.

And thank you.

[shadowkat67.livejournal.com]

ATPO also doesn't post things as a replacement for, in lieu of, or to see instead of getting the original - it posts for "informative" purposes or "educational" or "to discuss". Even the transcripts of the writer's commentaries and interviews posted to that board - were not kept in a place that are easily accessible - but rather as topics for discussion - with links to the original source and the author's names, title of place taken from, and issue.

In contrast - discussion boards like BC&S and the Ducks board - posted screenshots and items on their boards that could be seen as "in place of" the original. Both boards got letters from attorneys to cease and desist. I looked at both and could see why. BC&S had people posting pictures from the set, pieces of the script that no one had seen yet. It did not help that the site also had photos on the show and provided links for illegal downloading. In fact it was on the BC&S board that people started posting the entire plot and photos from the climatic episode of S6 (Seeing Red) before the episode before it, (Entropy) had been seen. Because their source - a satellite feed that they were hacking into gave them one episode before the other one. It's how many of us got spoiled that season. Ducks board got in trouble for doing something similar in the 7th Season, posting information from episodes before they aired with dialogue taken from scripts and links. And Spoiler Slayer - got in trouble and was forced to cease and desist for doing it as well. They all got upset and thought they were being told to shut down for "spoilers". No. It was for reproducing copyrighted material without permission on their websites - which robbed the original owner of revenue.

I remember telling the Moderators at ATPO at the time this was going on not to worry, that even thought they also had screenshots - these were taken from old episodes and were being used in a way that was advertising and benefiting the copyright owner not hurting the owner. It's a fine line, so can be confusing.

[shadowkat67.livejournal.com]

Oh good.

Amateur lawyers, sigh. Lawyers are bad enough. If it helps? Even professional copyright lawyers disagree on copyright law - and the case law is at times contradictory. There was a law case a while back on whether copying information from a "phone book" was copyright infringement. The case is "Feist Publications v. Rural Telephone Service Co." The court decided in favor of the defendent and said that information in a phone directory was a)in public domain and b)not organized in a creative manner. That's an example of more simplistic disagreement.

Plagirism is different from copyright violation. It can be a copyright violation, but also there are instances in which it's just unethical but not illegal. People have a tendency to think that just because something is "unethical" it is also a crime. No. For instance if you are given unconditional permission to use something and you pass it off as yours and can prove the unconditional permission - this is not a violation of copyright but is unethical.

I've seen your art and analyzed it in my head. You aren't in violation. Other people are though - I'll provide an example: producing a calendar of Firefly fan art -which is made up of drawings like yours above and calling it FANART is not a violation of copyright law.
Producting a calendar with screenshots and actual photos of the show and actual signed photos taken of the actors in their costumes from the show, with dialogue from it - without permission - is copyright infringement. Same with T-Shirts. Producing one that has one piece of dialogue from the show - say : "Bugger." or "Bloody HEll" or "Bored Now" is not copyright infringement. Even if you say it was Spike from BTVS - not as long as you make sure you put the TM symbol next to BTVS. But putting a photo of Marsters as Spike on it - then it is. The words themselves aren't - no one can copyright the words "Bloody Hell" or "Bugger" or "Bored Now."

Your drawing is of Mal with ghosts... I'd be really shocked if a lawyer tried to sue you for copyright infringement on that. I'm not saying one might not try, there's disagreement, and you could argue - oh it is obviously Mal and from Firefly and we own the copyright for that character. But, my question would be - is her drawing doing the following: robbing you of revenue? polluting the copyright? Passing the character off as her own? And is Firefly listed in it? It is a person interpreting what they see and their emotions regarding it - no different than Andy Warhol's pop culture art. Now, if you chose to write a Firefly comic book and have it take place in the past? Yes that's copyright violation. Neil Gaiman had to get permission for example to write 1602 - a comic with Marvel characters.

Now, like I said before this gets confusing - Mickey Mouse is a famous example. And it may be the Mickey Mouse case that Cafe Press is thinking about. Back in the day underground comics were doing somewhat racy and degrading comics featuring Mickey Mouse. Mickey also starting popping up on other things. Disney got nervous and realized that they were losing their trademark in Mickey. Note this is Trademark law not copyright - and that's where your use of Mal's falls under primarily - trademark law. So they went after everyone who used Mickey without their permission including and especially those underground comics. It was a tough one - because the underground claimed parody and to the extent that's possible, then it is okay. Long story short - Disney won. But is your use of Mal similar to the Disney case? Are you polluting the trademark? I don't think so. But you also aren't mass-producing it, and if you sold it - it would be to fans, not to people to advertise another product or another story unassociated with the show. The analysis requires more than just - oh she's drawing a picture of a character from a tv show.

[shadowkat67.livejournal.com]

Re-reading that, I hope I didn't just confuse you.

I think you are fine for the following reasons:
1. If you sold it - it wouldn't be en mass and it is unlikely the drawing would pollute or dillute Fox's trademark in the character of Mal.
2. While it is not a parody, it is at the same time just an expression, not a derivative expression, but a creative expression unique to you. You aren't passing the character off as yours - but relating to the character and if you are really paranoid, you can put MAL from Firefly,(TM) symbol. All Rights in the character owned by whomever.
So there's no confusion. (The people using Mickey did not do that.)
3. It serves to increase interest as opposed to decreasing interest in the character and show.

[shadowkat67.livejournal.com]

Well, plagirism and copyright violation aren't the same thing.
You can plagirize and not be in violation of copyright law - copyright law only comes into play if you are doing something you shouldn't WITHOUT permission from the owner. If the owner gives you unconditional permission to use the work - you can pass it off as your own and not be in violation of copyright law.

I remember reading a lawyer's article a few years back, wish I could remember where, stating that fan-fic in of itself really is not necessarily a violation of copyright law (possibly trademark law), it's creative expression. And not being sold for profit. That's how it falls within the loop-hole of the fair use doctrine, the whole this isn't for a profit deal, we are just playing. Now the fair use doctrine and rules on fanfic came before the internet. The internet has sort of thrown a wrench in the midst of copyright law - and is one of the reasons why the law got amended four or five times between 1978 and 2000. Because prior to the internet, fanfic was relegated to fanzines or traded between small fan communities or at conventions - it was not posted on a computer and transmitted to possibly as many if not more people than a novel tie in book. Heck, I think more people have read "herself" and some of the other fanfic stars than they've read Nancy Holder's novels on the Buffyverse. That's a monkey wrench that copyright law does not know how to handle. How do you police the internet? Heck, they can't stop people from illegally downloading tv shows, movies, comic books. And where do you draw the line?
Universities now have software programs and ways of checking to see if college kids have cut and pasted their papers from online articles.

Plagirism in of itself is a tough one - I had a friend in college who was accused of plagirism regarding an essay on Thomas Pynchon's Gravity's Rainbow. They decided she had to have plagirized the essay because they could not imagine a college student writing that level of analysis. And there is the infamous Nora Roberts vs. Janet Daily case - where Roberts successfully sued Daily for copying the plots, setting, characters and a portion of dialogue from not one but two of her novels and combining them. The infringement was brought to Roberts attention by a reader, I think. Almost ruined Daily's career. The other case, far more recent, is a Harvard student who got a huge book deal, movie rights, and was getting a lot of press for a book she'd just published. It was reviewed everywhere. Then someone figured out that she had copied sections from the Princess Diaries and another novel, combined them, and created her own story. The book was quickly removed from the shelves. She lost her book deal. Fell back into obscurity. Did she commit plagirism intentionally?

We all borrow from what we see, read, watch, listen to. It's impossible not to. Unless of course you decide not to read anything or watch anything when you write and some people do this. I find the practice sort of silly. Because the only way that works is if you never do and heck, that hurts your art. Borrowing, learning from other's techniques can make your writing better. You learn from the mistakes as well as the successes. So when does borrowing become plagirizing?
Interesting question. Plagirism is defined as copying someone else's work and passing it off as your own. If it is a copyright violation - it is based on the substance - how much from the original work, if you had permission, if you are infringing on the other person's "property rights" or "revenue". Even if the work is unpublished this comes into play - since it may rob you of future revenue or the ability to register or sell it yourself. This is why Joss Whedon will never admit to reading fanfic on his tv shows - not if he wants to do something else with them - he does not want to risk getting sued by a fanfic writer or spec writer for stealing their plot or storyline. (It's happened before - there's been several lawsuits where a spec writer and/or fanfic writer will sue a TV show creator or network or even a movie studio for a storyline or plot that they created, sent to the creator, and the creator put in a show without crediting them. )

[embers-log.livejournal.com]

Actually you are very clear. When I worked (for 5 years during the Reagan administration) for the US Senate Judiciary Committee, the lawyers would joke that they wrote in such a way that only other lawyers could ever hope to understand them. Although, to be fair, the vagueness (that is really a word?) of many laws come from the late hour compromises where each side thinks they got something into the bill that can be interpreted their way (I would just stick to bookkeeping and not try to understand it all).

[shadowkat67.livejournal.com]

Oh good, I confused me - so was hoping I hadn't done it to you. LOL!

Yep - it probably did. I remember working in the State Senate and they had the same problems. Getting people to agree on a statute is not as easy as it looks. I remember in law school, how we learned that when the Supreme Court or an Appeals Court decides a case based on state or federal statutes, they will often look at the legisilative history of the statute, the comments and debates - to see what the legislative intent was behind it. US Copyright Law is pretty vague in places.
And contradictory.

It's not as clear-cut as people like to believe and the internet has really made the issue more confusing - because the internet is not based in one country but in any country that can get hooked up to it, and if you think US Copyright Law is vague and complicated - try the law in other countries and add to it conflict of law issues, import/export agreements, GATT, and cultural and linguistic barriers. It's easy to enforce your copyright/trademark in the US, but try going after someone in a country that is not in a treaty with the US or likes the US very much. Ugh. Politics come into play as well.

[parallactic.livejournal.com]

This is a great post. I'm going to link to this on my lj, since I think more people in fandom should read it.

[astridv.livejournal.com]

(forgot how I got here...)
Very informative post, particularly the part about images and graphics, which gets mentioned a lot less often than fic in this context. I linked from my LJ, if that's okay.

One question regarding what you write on RPF:

Actually you have more lee-way here. Just have to make sure you are not passing it off as “real” or as the “truth” and once again it is not hurting the person’s image. In other words – Marsters and David Boreanze cannot sue you for writing fanfic that has characters with their names plastered on them having sex together. It may offend them, but they can’t say it’s a copyright infringement. Now if you published a book and said this is a fictional tale of these two people having a love affair, based on the real people – it gets dicey – they could sue for libel or for presenting them in a way that someone out there might consider true. This where you get all those National Enquirer law suits.

I don't know if I misunderstood that paragraph? As far as grounds for libel goes, I can't see why there should be a difference between a published book featuring a fictional tale about two real people, and a real people fic that's published for free on the net. If both book and online fic are clearly disclaimed as fictional, it seems the only real difference here is the author's pay - or lack thereof - so why should the money make a difference when it comes to the (mis)representation of the people in question?

OOps I was wrong!

[shadowkat67.livejournal.com]

I deleted my response to you because I discovered we're both wrong. Did a bit of research and completely re-worked the section.

Real Person Fanfic is dicey not because of copyright and trademark law, but because of libel and right to publicity, and privacy law statutes which vary country to country and state to state. These statutes can have stiffer penalities than copyright law. You can get fined, put in prison, and sued for violating these laws.

If you decide to do anything major with real person fanfic - such as a website devoted to it or a published work - I'd consult an attorney who specializes in libel and publicity law (ie. Entertainment Law).

You can also try some of the links I posted above. I am by no means an expert in those fields and the laws do vary.

[shadowkat67.livejournal.com]

Thank you and go ahead. Please note I changed the bit on real person fanfic, corrected it.

[femmenerd.livejournal.com]

Not sure how I got here but this is very interesting and informative. Thanks!

Re: OOps I was wrong!

[astridv.livejournal.com]

Thanks for taking the time to clarify, and in such great detail.

This is a dicey area. You are okay under copyright law. You are NOT okay under libel and defamation law and the penalities under defamation and libel law are worse than copyright.

*nods* That's what I always thought. The part about "right to publicity" I hadn't heard before, though. So this is where money would become a factor. Very interesting.

Re: OOps I was wrong!

[shadowkat67.livejournal.com]

Yep, "the right to publicity" was what I occassionally confuse with trademark law - the memory blurs things over time. It only comes into play if the person can prove someone is selling something using his/her likeness, name or image. But if the work is for entertainment purposes or artistic, the right may not be claimed. Course there are always areas of gray, it's not black and white, and that's where case law often comes into play.

[agilebrit.livejournal.com]

Oooh, very shiny info! Thanks for putting all that together in a clear, concise, and understandable manner. :) *adds to memories*

[gloriana.livejournal.com]

Thankyou for this: it's a great, comprehensive write-up :) I've heard a talk on the UK/European laws, but nothing so detailed on the American laws.

Yet another question, if I may? I've been told by someone who deals in media tie-in merchandise that it is a violation of trademark (I believe, rather than copyright) to represent in original artwork the recognisable costumes from eg a tv show or movie, and then sell that artwork. So, similar to the Firefly question posed above, but specifically about the recognizable trappings of the show. Can a company actually have copyright or trademarks in costumes or props? I'm thinking of Lucasfilm here, so if it is possible they probably do... :)

[shadowkat67.livejournal.com]

Short answer? Yes, they can.

Long answer:

Designs and patterns are copyrightable under copyright law or the Lantham Act. Anything that is can fixed in a tangible medium, is an original and creative expression is eligible for copyright protection.

So the first test is: Is the item fixed in a tangible medium? Tangible mediums are anything that you can touch and hold onto. Next - is it a creative expression? ie. more than just a list of names and dates. And is it original? For example writing a novel about people fighting in space is not original. Writing a novel about a boy named Luke Skywalker his journey to become a Jedi Knight, and
with his friends Han Solo and Princess Leia, and their related stories, is original. OR another way of putting it: Designing a dress isn't original. Designing one base on the empire state building, with geometrical pattern inside, and an alterred pant inside the skirt so it operates as both a dress and pants suit is original.

The next question: Is drawing a sketch of the costume infringement?

Well yes and no. Depends on what you are doing with the sketch. Whether you've copied the costume to sell as a pattern or design. Whether you are just doing a painting as an expression of "fanart".
And if your sketch or painting or piece of artwork would infringe on the revenue stream that the copyright owner could make off of it.

The last group of questions require a intellectual property attorney's analysis. Mostly because the case law varies from state to state, country to country. And it is not always clear what is and is not infringement.

If you are selling the sketch for people to make their own costumes and props from it - that is obviously an infringement of copyright law. If, however, you are merely selling it as a painting of people wearing the outfits from Star Wars in a future society as a piece of fanart or just plain art - that may fall within the "fair use doctrine" and under "the first amendment".

Intellectual Property Law can get a bit complicated.

[gloriana.livejournal.com]

Intellectual Property Law can get a bit complicated.

It surely can :)

Thank you so much for such a comprehensive answer. While I can't see that I would ever be generating an income stream that would be of interest to LucasArts, it's good to get an idea of where I should start feeling edgy.

[magentathompson.livejournal.com]

Copyright law always makes me sweat in terms of my fan site, which is just chock full of stuff I don't own and never will. I know that the longevity of it relies on these photographers, journalists, etc. not contacting me and threatening to sue (I'm already dealing with one, but it's not a copyright issue). So this was an awesome read that basically reinforced what I more or less already knew: I have as much right to have my site as a whole bunch of people allow me to have. :)

[sunhawk.livejournal.com]

Sorry to randomly pop up but since I had a discussion about this exact topic in my LJ recently and this is immensely helpful (since most of basically ended up saying "Hmmm well i'm not in law so i'm not entirely sure") and i will be adding it to my memories :)

[screwthedaisies.livejournal.com]

Here from metafandom. It's a great post. Regarding Right of Publicity and fiction, however, publaw.com has this to say:

"The writing of historical novels or other fiction works that are based on actual people and events would not be possible if an individual's right of publicity legally prohibited such efforts. Courts have generally held that as long as a fictionalized work makes it clear to the reading audience that the work is a one of fiction then there is no infringement of an individual's right of publicity. However, if the creative work purports to be factual and it is in fact fiction, then the individual's right of publicity would be infringed. One difficulty with this distinction is that some courts have failed to distinguish between works that are fictional and those that are factual and have permitted an individual to successfully claim that a fictional work has infringed his/her right of publicity."

So yes, if you publish RPF you could still get sued, but most of the court opinions I've dug up on the net rule in favor of the First Amendment over right to publicity when it comes to works of fiction. (The one case that comes to mind where the plaintiff prevailed is John Doe, a/k/a Tony Twist, Appellant v. TCI Cablevision, et al., Respondents., in which the Missouri Supreme Court decided that Todd McFarlane was using Tony Twist's name for a character in his Spawn comics to attract young hockey fans to buy the comics.)

I've also yet to come across a public figure winning a suit for defamation in fiction (but admittedly my only resource is the 'net. I wouldn't know what to do in a law library if I were fortunate enough to find myself standing in one).

Armchair lawyers...ya gotta love us, right? :) ~flees~

[shadowkat67.livejournal.com]

The difficulty is courts do not agree - not surprising considering courts are after-all made up of people. How many fans agree on what was presented on the shows they love or on their interpretations of what was presented to them? Law's not that different. Before making a decision that interprets a statute - a judge will often consult the legislative history of the statute - and trust me that history is not easy to interpret. If you thought it was difficult to interpret authorial intent of a fanfic or an episode of a TV show, try figuring out the legislative intent of a bunch of politicians from opposing parties.

Constitutional Law is even harder - not as clear-cut as many people seem to think. Did you know that experts in Constitutional Law still debate the intent of the "Right to Bear Arms"? One group argues it was meant purely to create a militia for defense, another group that it means we have the right to own guns. The Supreme Court is also not always consistent regarding its interpretations - each person interprets the Constitution based upon their own personal philosophy. There's the Strict Constructionists - who believe you have to analyze the law on its face - literally and based within the context of what the framers intended - who lived in the 1700s. And then another group that believes the federal government should stay out of it entirely - the State's laws should hold sway over the US Constitution unless the conflict is unbearable. Add to this conflict in laws - individual State consitutions and well, you see my point. Ex: Massachustes allows gays to marry under its Constitution, while New York, its next door neighbor, does not.


The "right to publicity" is a statute which varies state to state. California has a stricter statute than Missouri - because the voters of California care more about the issue than the voters of Missouri. The two states do not agree - heck they didn't agree on which President to elect either. Missouri on the other hand has strict laws on other types of commerce that California may not care that much about. The difference between state statutes is where the doctrine "conflict of law" comes into play. Example: You write RPF about James Marsters and publish it in Missouri, but Marsters resides in California. Marsters decides to sue you under the California statute regarding "right to publicity" in California. Your lawyer claims that the case should be decided in Missouri, not California, because you reside in Missouri and he/she knows that Missouri would rule in your favor. Marsters attorney fights his claim on the grounds that while you published the work in Missouri, the subject of your work resides in California, you knew it at the time, and since Marsters has the burden of proof as plaintiff, he should pick jurisdiction. It's been a while but my guess is it would go to California. But there's an outside chance the court might choose Missouri.

If M loses - M could bring a claim against you regarding defamation of character - a separate claim. You'd claim as a defense "Freedom of Speech" under First Amendment. A Claim that does not guarantee you a win, courts interpret the First Amendment differently. Also there's another nifty section under the First Amendment - it's called "right to privacy". "Right to Privacy" gets a wide variety of interpretations and encompasses a person's right to safeguard personal information. So if you decided to reproduce information that Marsters told you in confidence or you learned from an ex-girlfriend of his - he might sue under "right to privacy".

The reason you don't see many of these cases is it is expensive to sue someone. Not just money wise but image wise. Also it takes a long time. Civil suites depending on the state can take upwards to a year or more just to get to Judge. Possibly longer for a jury. I served on the jury of a civil suit recently - a fairly straight forward personal injury case - that took six years to come to trail. Six years. It can take up to ten years, lots of motions back and forth, hefty attorney's fees, and you might get zip.

To be honest? I can't see an actor suing over a RPF unless the fic really is hurting them. It's easier to just ignore them. That's not to say they will.

[screwthedaisies.livejournal.com]

Right. I'm not trying to make into "Haha, there's no risk!"; I'm just trying to say it is just a risk, and like any risk a person has to decide if she's willing to take it. All too often the libel/defamation/whatever "argument" is presented less as a risk and more of an absolute: you can't do that because you WILL get nailed to the wall for it. I felt that the RPF section in your post here was along those lines--more hype than balanced content.

The other thing that almost never gets mentioned is that you will, because as you said suits take forever and they cost an assload, most likely get a C&D before you get served with papers (because it's way cheaper to scare someone into stopping with a stern-sounding letter from a lawyer), and that gives you a chance to re-assess whether you're good with continuing to take this risk.

Most people that I run into in fandom have a distorted idea of what the risk they're taking is, and that's because people keep telling them it is libel, it is defamation, it is misappropriation, etc. Absolutes when there is no absolutes. (Also, they keep getting told, "As long as you don't make money off of it...." which is also not true--anything posted on the internet or emailed to your friend--or scribbed on a napkin and handed to the cute guy a few tables away--is considered "published" in a defamation action as far as the courts concerned. People need to know this; they need to know what risks they're taking, not so they can be scared out of doing it, but so they can make informed decisions about whether to write, whether to post, whether to put it in a book.)

[shadowkat67.livejournal.com]

Actually, I don't implie that you "will" get nailed, just that the risk is greater with RPF than regular fanfic - the reason is that defamation laws are harder to defend against than copyright and come with a stricter penalty. If you are sued under "copyright" law - the most that will happen is a fine and an injunction against your work and the fine most likely won't include "punitive" damages.

I'm not an expert on Defamation - so I cannot tell you what will happen. My guess is that it is highly unlikely someone is going to sue you for writing RPF fic. But I am not comfortable stating that as a certainity. Because I do not know. Which is why I stated at the end of the section - that if you wish to make revenue off of it - you might want to consult an attorney with knowledge in the field.

Under copyright law? RPF is more or less safe. Since you cannot own a copyright in your name, likeness or personal image.

Under defamation and libel - I don't know if you are safe or not, and neither do you. Since neither of us know with any certainity - that makes it a much greater risk. The way I'd look at it, is ask myself how would I feel if someone wrote this fic about me, personally, what would I do? And would I care if it were just on lj? (No, not that much) If it were published and in a book store? Yes, I'd care a great deal and do whatever it took to get it off the shelves. So ask yourself this question whenever you write something: "How would I feel if this was about me? OR concerned my work or creative expression?" Granted you may reacte very differently than your subject.

In the legal arena - courts will often ask another question: "To what extent did this injure the other person?" This is a question the writer of the fic should ask. To what extent is my fic hurting someone else? Sounds silly. How can a work of fiction hurt someone, right? But it has. It is like gossip, people often believe what they read regardless of the label attached to it. It's worth keeping in mind - when you consider the risks.

[embers-log.livejournal.com]

you had said before that it was okay to link this post, I haven't gone that far, but I did send the link to 11th Hour (a woman at the firefly boards who is being over-whelmed by Universal's implied demand that she owes them $9,000 for selling her original Firefly art through cafe press). I also excerpted this post with your links to actual cases & laws (quoting it as being from someone at lj, because I wasn't sure you wanted everyone over there who is freaked about this subject coming over here...).
In other words I was trying to put out the knowledge without allowing your lj to be unduly invaded, I hope that is okay (I'm never sure what is too much ... some people would like to have their lj name posted but I wasn't sure you would).

[shadowkat67.livejournal.com]

You did the right thing. And you can link to my post, but only with the following disclaimer: I am not qualified to give legal advice since I do not have an *active* license to practice law. What I'm providing is what I know from my own experiences with copyright law. If you are being sued, the best thing to do is consult a practicing attorney who has a background in intellectual property law.

My advice to the woman is to find a copyright attorney. Each state's law is different and a licensed attorney knows the state laws and what specific cases to look at it. It depends on the art of course. A good case to look up is the one in which a Costume Shop in LA tried to sell versions of Star Wars costumes.

I don't know whether your t-shirt with sketches of the characters is an infringement or not, my guess is it isn't. Since you could argue they are no different than you drawing a person on the street or a vase and putting it on a t-shirt. However if you are selling it as "Firefly" art or art associated directly with "Firefly" - than yes that could be considered a copyright infringement.
Because of trademark and copyright laws.

[embers-log.livejournal.com]

thanks, I did tell her you couldn't represent her in anyway but I just thought reading your post might give her some information. I do believe she is seeing a lawyer.
Personally I've taken down all artwork which has any connection with Firefly and/or Serenity, I had never advertised them as being about or of the show (so a search at cafepress wouldn't have brought my work to the surface) but I didn't want to run the risk of anything being at cafepress right at this time (while the lawyers are evidently after blood).

[shadowkat67.livejournal.com]

I posted on Whedonesque about it. This is weird. If they are out for blood they are being lazy about it. Email? EMAIL??

Yes, you can send email for cease and desist. But if you want money? You better frigging send the notice by certified mail.

Tell the browncoats not to bother Whedon or anyone involved with the making of the film about this - also don't blame them. It's not their fault. They have zip to do with it. And can't do anything. Heck Whedon would be sued if he created Buffy T-shirts and sold them without Fox's permission. The marketing people on the other hand...you can blame. ;-)

[embers-log.livejournal.com]

I think they sent an e-mail because they didn't have access to her home address, only the e-mail contact address that customers are given (at least that is what I think is the situation).

It is weird that they sent this incredibly threatening e-mail right off the bat, I've been to her site many times and she had a highly stylized picture of the ship done in different colors..here is the image in gold:

as you see, it does say 'Serenity' but not with the logo...
she has taken down everything at her cafepress site, but she has been selling things for over a year (I bought hot plates and postcards w/that gold image on it...I loved the fact that it wasn't obviously fandom related)

Some people are, foolishly, calling for Joss' help, which is ridiculous: he is under contract w/Universal for more pictures, he can't take them on in court even if he wanted to. But I'm assuming that the moderators at the fan sites will tell those people to cool it.

[shadowkat67.livejournal.com]

I posted on both whedonesque and on 11th Hour's site - stating more or less what I have here. ie:
She should be consulting an attorney, showing them everything. Not responding to any threatening emails until she does so. And let them review or write the response. Do not discuss what she is doing online in anyway, you don't know who is lurking. And not to waste time blaming Whedon and company or requesting their help - they don't own the rights and have 0 control over it. If Whedon's smart and he appears to be pretty savvy regarding these things, he'll ignore this. He usually does. Note the only times he appears is regarding tid-bits on what he is up to next and if he is still working on stuff - sort as a self-promotional push for his work and a way to keep his fanbase. After I posted that on Whedonesque, I noticed a couple more people posting to echo those thoughts, which is good.

The picture you showed looks like a copyright infringement to me. Clearly associated with the show, even includes the Chinese characters and is set up similarily to what I remember of the promotional and advertising material devised by Universial. A ship reprinted on old paper, with Chinese lettering and the slogan in blurred English across the top - depicting both Western and Sci-Fi? Yep seen it before, it feels familiar to me, and I've never been to CafePress. It is not like the t-shirt you designed - which felt more like an artist's interpretation of the show and I'd never seen done before.

Oh, I can see why they sent the email for cease and desist. I used to do that in my job at the publishing company. Sent emails to websites all the time. But asking for money damages via email?
Oookay. Good luck with that. They are right to go after her - to shut down the site and stop her from reproducing their copyrighted property on t-shirts, cups, etc for sale. Only way to protect the copyright and trademark. If they don't do it, they lose the copyright and licensing fees that other firms doing the same things she is are paying them. Imagine two t-shirt companies. One pays the license and copyright fees and sells t-shirts with the logo on them. The other doesn't pay the license and copyright fees and sells the t-shirts with the logo. The first company discovers this, screams bloody murder. Heck, don't blame them I would. I honestly think that's what happened here.
She probably got caught by a rival who is doing the same thing, but paying for the privilege, while she's not paying for it.

Chance of being sued

[(Anonymous)]

Hi I've been writing a fiction novel that depicts George Bush Senior as being associated with Prince Philip in England with a 30 year old treaty to control illegal narcotics. What are the chances of me being sued - it is of course all fiction and not even partly true?

Re: Chance of being sued

[shadowkat67.livejournal.com]

Well, depends...on how you are presenting the information. Even if it is in a fictional piece of work - is the information being presented in a way that the reader may believe it is true? Is it defamatory in character?
Is any of it based on a portion of the truth?

I think the same rules apply for Bush as they would for any public figure or celelbrity or real person. What I'd ask myself is would I take offense if this book was about me and I saw it on the shelves...and would I sue the author?

That said - this is often a question that a publisher or editor will ask and decide on.

Most often publishers veer away from books that depict living people in a bad light, regardless of whether or not they are fictional. Dead people they aren't that worried about.

But I've seen fictional books about still living Presidents. Lots on Nixon when he was still around.

It's dicey writing about actual people...your audience tends to be more critical of your characterization as do the publishers..

But I'm really no expert on this particular topic. Just my take on what I remember.