So in sum, the argument here is that CBS/P really needs to limited-license to fans because there are just too many ways that CBS/P could sue under the guidelines (if they chose to ignore the guidelines), and this is an unacceptable situation for fans to be in?
Yeah, pretty much. Why would CBS expect people to open themselves up to legal peril just to produce content the compliments their product?
Part of me wishes CBS would just say "sorry, no more fan films allowed at all" just to piss off the entitled fans.
Part of me wishes they'd do that because at least then fans would know where they stand. Quite frankly, it would be a strange relief.
All of those definitions can be interpreted as either referring to criminal acts involving physical property or the seizing of physical property, depending on which definition of "take" or "appropriate" you choose.
Furthermore, courts already make a distinction between the two:
https://en.wikipedia.org/wiki/Copyright_infringement#.22Theft.22
If copyright infringement is not an unlawful taking, I don't know what is. And intellectual property is property. (Duh! It's in the name.)
"Intellectual Property" is hardly an uncontroversial term:
https://www.eff.org/issues/intellectual-property/the-term
This whole discussion is just a big helping of steaming semantics, with a course of over-parsed metaphors, and a side order mashed and loaded analogies.
My initial argument wasn't the definition of stealing, but that the use of the term was as inflammatory as the term "draconian". Professor Zoom argued that "stealing" and "theft" couldn't be inflammatory because the terms were literal descriptions. So you have him to thank for starting the semantics debate, not me.
This is where you are wrong. A great example of this is Captain Marvel. BUT WHICH?! Both and why one Captain Marvel is now Shazam.
So, DC bought the rights from Fawcett for Captain Marvel, ironically after forcing Fawcett to stop producing Captain Marvel comics after suing them successfully for copyright infringement. They felt Superman was to close to Captain Marvel. Anyway, Fawcett sold off Captain Marvel, DC comics bought it. But, for a time they didn't publish anything with Captain Marvel in the title.
In the late 1960s, Marvel came out with THEIR Captain Marvel... and the trademark to boot. DC couldn't publish a comic with Captain Marvel on the cover... they couldn't trade on it... So, they did the next best thing... The Power of Shazam! Of course within the body of the comic, he was still called Captain Marvel.
Hell, the TV show was called Shazam because they didn't have the trademark.
Eventually, fairly recently, DC just gave it up and changed the character's name to Shazam--as by the point many people thought that was the character's name. Though, why would someone shout their own name to change into a super hero, I have no idea.
So. Trademark does carry a distinction.
I think we're conflating trademarks on titles with trademarks on character names. Both are possible, but in the instance of Buffy, there actually isn't a trademark for the character herself, so it doesn't matter.
Right. I'm not sure what point you're making. Let me repeat the question, I'll even set the scene.
At a party, you tell me this fantastic idea for a novel. You tell me the scenes, the characters, all of the great juicy bits. It's spectacular. Being unscrupulous, I race home and over a drug fueled weekend I churn out a novel, I give it to my agent and he gets it sold. And, of course, I don't share any of the money, fame, and all the power that comes with being a writer.
How would you describe my act of taking your franchise creating idea from you? Is there a particular adjective that you would use? Did I just borrow your idea? Am I just sharing your idea with people? Or did I steal your idea and now I have Harry Potter money?
Sadly , of course, you can't sue me for copyright infringement, but, you could call me a thief!
Actually, I'd say that person was guilty of copyright fraud, because they'd have to register the copyright prior to publication, and the registration would be fraudulent. I'm pretty sure you could register your own copyright, get theirs invalidated, and sue them for infringement.
It's work for hire. It's industry standard. What does that have to do with anything?
You used the phrase "stealing someone's idea". Who's the someone? The copyright holder or the person who conceived the idea? If the latter, does the term stealing apply if they're no longer the copyright holder?
We agree! It is for a courts to decide. For example this artist reprinted people's instagram pictures and hung them in a museum. He MAY have modified some of the captions. He was sued by those people. He claimed fair use, and he won. (though, I think that's a pretty shitty ruling.)
BUT, I'm not a court of law. My words hold no legal standing. So, when you are making a fan film, you are specifically taking something that isn't yours. And no, in this case, raising money, building sets, getting actors, you are INTENDING to make a fan film. You intend to take something that isn't yours.
No, we don't agree, because I don't consider it "stealing". And it's problematic to consider it stealing, as it can be "stealing" one day and "fair use" the next. Not to mention the fact that someone may not even take it to court because they lack the money. I guess if you're poor, you're a thief no matter what, huh?
But, that's not what most fan films are doing. They aren't parody.
You can't make that determination sight-unseen. Copyright is complex, and it's common to have a difference of opinion on what's fair use and what's not.
Yeah, but, that would be a stupid business practice. Like, who in their right mind would license something and then just look the other way?
The same people who would NOT license something, then look the other way when an unlicensed entity makes use of their copyright. Contracts and licenses are rarely enforced absolutely. Often times, minor infractions are ignored because it isn't worth the effort.
Why not? That character isn't copyrighted in your Star Trek fan film. Because you CAN'T. They don't want you to because they don't want you to claim some sort ownership if they were to use a character similar to yours. They don't care about your characters.
If I include a character in a non-Star Trek story, I'm free to copyright. You can argue the purity of CBS's motives, but the guidelines give them cover to basically copyright your character out from under you by your own admission.
If fan films were licenced, CBS would almost certainly be much more actively involved in saying, no, you can't use that culture; no, that storyline is too close to something already in the works elsewhere; no, we'd prefer you focus on this character and leave that one out of the story; etc.
I don't think so. We're not talking about a license of the same type that you see with official books and other materials. A fan license would require people to identify content as such. They'd be required to post disclaimers, explicitly label their films as fan productions, and would be prohibited from using trademarked logos or direct footage, just like they are under the current guidelines. A layperson isn't going to be aware of the legal distinction without someone telling them about it anyways.
