Fan Works, Copyright and Fair Use
- Thread starter Matthew Raymond
- Start date
I never said it was. I was using it as an example of scale, not as the subject of litigation. That said, the site has received and had to comply with DMCA takedowns in the past.
Except there have been situations where these companies have very publicly gone after fans, such as the "Potter Wars":
https://medium.com/@emiller20/freedom-to-fanfic-the-warner-bros-potter-wars-3846c4f5e0c5
They can, if treated as absolutes. Let's say someone buys all the land around your house. How do you get out and go to work? You have to cross the property of the new property owner, don't you? Now, this is something that you actually can do legally, because the rights of the property owner in question are not absolute under the law.
Because they have the inherent right of free expression which, unlike copyright, is part of the United Nations' Universal Declaration of Human Rights.
Seeing as I'm proposing a legislative change, your question is disingenuous. Under current law, they have nearly absolute protection.
Really? Can you give one example of a fan work with proper attribution that destroyed the market for the work of an individual artist?
You will note that proper attribution was one of the requirements for exemption that I set out, so your plagiarism argument does not apply.
You're being naive. Motion picture studios are notorious for shady accounting practices and contracts that creatively cheat actors out of their royalties. The music industry is even worse. The RIAA and MPAA are also well known for giving false and misleading information and statistics. I'm not saying anyone specifically would mislead a court, but you can't write laws with the assumption that no one will.
I may be confusing the arguments of other people with yours. I apologize.
Not directly.
Actually, many authors got their start in fan fiction, including Neil Gaiman, Meg Cabot and Lev Grossman. Peter David actually started out writing fan fiction before becoming the author of numerous official Star Trek novels. So it's entirely possible of fan works to serve as a training ground for future employees.
That's not logical. First of all, they can potentially steal things from fan fiction right now, because the courts have decided that copyright law doesn't protect unauthorized derivative works. (Not that they would. Just saying.) Also, CBS has already crafted the Guidelines, and while you might make a semantic argument about how they're not "rules", a fair use exemption carries no requirements of rule making anyways. So that's two out of three without there even being a change to copyright law. As for monitoring abuse, fair use doesn't require that either. People could outright pirate your content and you wouldn't be required to do anything under copyright law, even with the changes I propose. A fair use exemption for fan works would actually make it easier to monitor for violations, because you have a clear legal definition for who remains in violation.
By that, do you mean can a sufficiently large voting audience able to elect representatives to pass copyright legislation that they favor make that decision? Uh, yeah.
Can you give actual examples of situations where individual content creators have been significantly harmed by non-commercial works by their fans that are clearly marked as such? Because I can give at least one example of individual content creators that have harmed their fans:
https://fanlore.org/wiki/Where_has_Anne_Rice_fanfiction_gone?
As for your estate providing royalty money for your nephew after your death, he's not going to get much. Statistically, most of the money you make will be in the first few years after publication. Better to put it in an investment.
Take a look at the 2015 "Power/Rangers" fan film. Is that a "knockoff"? In the first minute, it has already addressed the uncomfortable fact that the Power Rangers are essentially child soldiers fighting an enemy they never met. It's difficult to argue that this grim critique of the source material that is a parody or that it's for educational purposes, but it nevertheless makes significant social commentary on its source material.
Even if the number of people who make or consume fan works is a small fraction compared to the general population, that doesn't mean they're small relative to the number of copyright holders. Thus you can have a net gain without being a majority of the population.
The fact that the vast majority of works that would fall under the described exemption are not actively pursued by copyright holders now suggests otherwise.
Great implementations of ideas don't grow on trees. Great ideas themselves are a dime a dozen.
Seeing as rights under copyright are only rarely exercised for most fan works, it doesn't appear to be much of an incentive. That would suggest that the benefit of having the fan works far outweights any disincentive cause by an exemption for their fair use.
The paid licensing thing is a fallacy. Unless you've got the money to buy a franchise outright, you will almost never get such a license, because the potential risk to the traditional cash flow of franchise outweighs the amount licensing would bring in. With regard to Star Trek specifically, the collective money spent on all Star Trek fan films ever probably wouldn't buy a Star Trek film license form CBS.
Heck, with a fraction of that money, you could just hire a professional Hollywood writer to just brainstorm an idea.
Seeing as many fan works, particularly TOS, would be in the public domain and free of copyright concerns if copyright had not been extended, it would seem applicable to me. That said, content is relevant for a shorter period of time these days, so perhaps a situation like this was inevitable, even if copyright had never changed at all.
Nonsense.
That's the law.
https://medium.com/@emiller20/freedom-to-fanfic-the-warner-bros-potter-wars-3846c4f5e0c5
Unsuspecting is the key word in my statement.
Sell my property and move. It isn't like I'm trapped there.
But this is about US law, as well as creators and IP owners to be able to manage their work. Fans can expressed themselves right now without profiting from it. They've done it for years with minimal litigation.
No, it's not. This discussion is becoming ambiguous because we are dealing with the law as it stands right now.
If you want to change it, I recommend going to the legislature rather than TrekBBS.
That isn't my point, at all. Please don't twist my words. If this was an individual's intellectual property the argument would be made in favor of the owner.
It does because you are still using another person's labor for your own work. I'll call it research because it sounds better.
I'm being naive? Because I don't think that the companies accounting practices are any of my business?
They still get the practice. They don't need protection for fan fiction. They didn't lose those skills if fanfiction.net gets taken down. This is illogical in an extreme.
Yeah, the corporations could, but would face significant backlash. Poor business.
Instead of changing the law, allow the corporations to decide how their product gets used. Like CBS did and Lucasfilm did and on and on.
The larger point is is that this is their property. I, as a fan, don't have a right to it.
Then do that.
It simply comes down to this: Star Trek and other properties are owned by studios. They aren't yours or any other fans to do with as they please. Create your own IP if CBS' guidelines are too stringent for your liking.
@Matthew Raymond
You can't assign rights to one group that diminishes the rights of another group.
Do you have any real education in law, or are you making this up as you go? If you do, I'd ask for a refund.
You can't assign rights to one group that diminishes the rights of another group.
Do you have any real education in law, or are you making this up as you go? If you do, I'd ask for a refund.
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I believe your argument is a false analogy. But even so, the law allows for a right-of-way for the land owner in the middle. You cannot legally block access by buying up all the land around someone else. You have to give a reasonable path of access. If the two parties can't agree on what's reasonable, the court will decide.
Likewise, copyright law (and ONLY copyright law, not patents and trademarks) allow for Fair Use exemptions. This, then, would be the reasonable path of access. Just as a land owner may have a single-lane road and not a four-lane highway to his land, Fair Use allows for a limited amount of "borrowing" from a copyright work. Technically, a full-length fan-fic / fan-film is the four-lane highway, but the copyright holder may permit such as his discretion.
Situations where individual content creators have been significantly harmed - where does 'significant' play into any of it? Because you're carving out a ridiculous premise, that big corporations can't have significant harm because they're big, and small creators like me don't get significant harm because we don't make a lot of $$ from our stuff.
Copyright law doesn't work that way.
Because if it did, where do you draw the line? I know indies who make thousands per month on their works. Is that significant enough for you? Or do they have to completely quit their day jobs? That's nobody's standard but, apparently, yours.
Spoiler alert - unless you are a VERY big time author (think Rowling), you don't quit your day job if you've got a lick of sense. Markets can dry up. Or you might have serious expenses for some reason or another. Indie author money just isn't that reliable.
But that doesn't mean that knockoffs don't harm indies. Of course they do.
And where has Rice harmed her fans? She just said, don't make fan works. I don't want to see them. If anyone thinks they lost something measurable (such as profit) by her pronouncement, then what they intended to do was highly likely not to be fair use. Commercializing a knockoff tends to tip the scales rather heavily on the side of something not being fair use.
And gee, that's awfully sweet of you to care about my nephews (plural). Truth is, they'll get my house. But that's not the point. If some producer comes knocking for original work, I have it.
But why should I be able to will them my home but not my intellectual property? Because of value? Then I guess I can't will them my furniture, my dishes, or my books.
Intellectual property doesn't work this way. It's not something that has to be big to be important, and too big for it to hurt. IP law doesn't perform those sorts of convoluted contortionist-style measurements.
Do you want to know what's being ripped off?
I also write for charity anthologies. I don't make a dime off those, and none of us do. The proceeds go to the American Cancer Society or the Alzheimer's Association. That doesn't magically make the IP no longer mine. It's simply a donation.
And I have even seen those works pirated.
Yes, charity anthologies which only cost a few bucks get pirated. And the harm against me and my fellow writers gets passed through, directly, to the recipients of those charities' good works.
So yeah, knockoffs bother me. A LOT.
PS Have never seen the Power Rangers (except in passing - very brief passing) and not a fan film about them, either. Can fan works reinterpret the originals and even improve on them? No argument here. But that does not magically stop those works from being knockoffs.
I was responding to you're statement "I see no one threatening to take down fanfiction.net" (which, by the way, was a mischaracterization of a reference I made Fanfiction.net to establish an idea of the number of fan works). I was pointing out that some fan fiction on that site was indeed threatened. Your statement is meaningless in that context, especially in a topic discussing proposed changes to the law motivated by threats to fan fiction.
I don't see how your use of the word "unsuspecting" is relevant. It seems like you're trying to win an argument entirely on semantics.
Really? Who's going to buy property they can't get to? The guy who bought the property around you? How much money do you think you'll get from that guy? Enough to cover your mortgage? Enough to pay for moving trucks that--oops, I forgot, they can't move anything because they can't reach your property.
And by the way, if someone buys the property around your house while you're in the house, and you can't legally cross his property, you're absolutely trapped there.
You can't argue about "rights", then turn around and say it's about US law, especially since we're talking about whether particular rights are pertinent to keeping the laws the way they are or changing them.
No one is arguing that anyone should be able to profit from fan works. I, in fact, excluded any profit from my exemption, and I'd be happy to incorporate improvements to that language to better address the topic. And there have been instances where people who where not profiting where pursued, by the way.
That would suggest that, for a certain well-defined category of fan works, there isn't a need for the right of litigation.
I don't know what discussion you're having, but mine has been clearly dedicated to discussing how the current law should be changed. That ambiguity isn't coming from me.
Unless you're a moderator here to tell my that my discussion is in violation of forum rules, I really don't care where you think this conversation should be held. Furthermore, as this proposed legislation relates to fans and fan film makers, why would I not seek their input here? As such, your response seems more like an attempt to suppress the topic then an actual concern over venue.
That's an assumption without a stated basis, and I never said there should be distinctions drawn regarding the nature of the copyright holder.
Here's the definition of plagiarism: the practice of taking someone else's work or ideas and passing them off as one's own.
Emphasis mine. Note that not only do I require attribution, but I exclude works from exemption that are basically copies of the original material, which would make up the bulk of actual plagiarism even if the attribution clause was removed.
If they're admissible as evidence and not under seal, they're public record anyway. Furthermore, if you're the one being sued, and the plaintiff submits those numbers as evidence, it's most certainly your business, as you have a right to challenge evidence against you. Not that any of this is relevant, as I'm not the one proposing that damages should be a determining factor in whether or not people would be exempt under fair use.
What's illogical is that you keep ignoring the context of what I write. I was responding regarding whether or not the copyright holder could benefit from fan works. The fact that a fan fiction writer can turn pro and write officially for the very franchise he used to write fan fiction for seems to be pertinent in that context.
I actually said as much, if you were paying attention: "Not that they would. Just saying."
The point was that they don't actually have a shelter against claims of taking from fan films in the first place. I'm not claiming they actually take stuff from fan works. I've actually stated that they wouldn't do that as a matter of standard policy in another thread.
That's what we've been doing, with little or no effect. The Guidelines are the exception, not the rule, and not even the best exception to boot.
Because that's the way the law is written, which I propose changing. You're going around in circles and not saying anything new.
That's exactly what copyright does. It takes a way my rights with regards to free expression and how I use my own property to give rights to the copyright holders, a right that is fundamentally anti-captialist because it creates an state-instituted monopoly. Don't pretend that copyright isn't based on a compromise regarding the rights of different parties, because it is.
I appreciate you're well reasoned response. It's a good analogy, but it's not entirely applicable. The original analogy was just to demonstrate that property rights can't be absolute, not to serve as an analogy for copyright in general. If I were to change this analogy to make it more about copyright, I would have the property owner buying all the property around a city, because there are typically many fans to a single copyright holder. In that context, you would need a four-lane road through the property owner's property because of the sheer number of people who need to get in and out of the city.
Now, obviously, we could spend all day going back and forth with different analogies, but that's kinda my point. Analogies alone are insufficient for this type of conversation.
Fair enough, I will concede the possibility of significant harm to individuals, although you don't actually give any instances where small, starving artists are being crushed by their own fan base run amok. If you're going to argue potential harm, argue it. Give me a real world example of fan artists crushing their original source of inspiration. The only examples I've heard involve the very works I would continue to prohibit.
Unless you make it big, you probably don't have much of a fan base to begin with, nor will it be easy for people to find fan works based on your copyrighted materials. (This sounds more like an anti-piracy/anti-plagiarism argument.)
They can, but that harm would largely come form piracy and works that fail to cite the original artist. Properly attributed and transformative fan work that can attract eyeballs to a copyrighted work that would otherwise receive little attention is most likely a benefit to the copyright holder, not a burden.
According to accounts, Anne Rice and her entourage directly harassed people, doxxed them, and went after their non-Anne-Rice fan fiction, among other things. Anne Rice is not the metaphorical hill you want to die on.
I don't actually know what your point is in this paragraph.
You can will them anything you want. Just don't pretend that having nearly unending copyright is a good idea because your then-elderly Nephew needs a new pair of shoes.
First of all, you're doing a disservice by grouping laws governing patent, copyright, trademark, trade secrets and likeness and pretending they all work the same way. Secondly, you're misrepresenting the benefit of these laws to single individuals with limited resources. For example, most people can't afford to file a copyright law, and even if they can, most of the people you could sued with regard to fan works aren't going to have enough money to pay the legal fees. I once worked for a company that basically went under because they spent a small fortune on patents that nobody wanted to license. Even the fellow running the company could have found a large patent violator (which would be a pharmaceutical company in this case), he probably wouldn't have had sufficient funds to fight the case in court anyways.
Are you saying that you'd have to sue on their behalf? Who's writing obscure anthology fan fiction? What if the fan fiction author puts in a line urging people to donate to American Cancer Society or the Alzheimer's Association? What if he donates his fan fiction to their anthology to be put right next to your submission?
That's why I'd excluding pirated works from exemption. However, if you feel there is stronger/better language I could use, I'm all ears.
With all due respect, there's no way you're going to mistake the fan film for the original Power Rangers. They have fundamental differences in tone and style.
It's like reasoning with JELLO™
Neither are you at this point. If you think the law is unfair, work to change. I don't think the law is unfair, because it isn't my property-period. My free expression is not under fire because I can't write "Star Trek fan fiction." Oh wait, I have, and have for years with no legal repercussions. None. My wife has done the same with Lord of the Rings. Know how many C&D's she's gotten from the Tolkien estate? 0!
I did fan films for years in college without any concern or the like. Not a single repercussion. I went out, found people to help, cameras, equipment and props. Others have done the same.
So, how is free expression being squelched when people still can do the things they've already been doing?
Secondarily, why is this niche audience of a niche audience, so important as to mandate legal protection? What is the motivation?
"Protected speech" does not mean "Consequence free speech and content creation"
Is that not what I'm trying to do here?
You're free to have that opinion, but it is not one specific to any kind of fair use exemption.
That's great for you. I personally wrote a couple of articles for a fanzine in my home town many years back and never got sued for those either.
Others, as I have pointed out already, have not been so lucky. We are not free from repercussions. They are always there, hanging over our heads like the Sword of Damocles. You're merely arguing that the string holding the sword up is really strong, so we shouldn't worry.
Except that people have actually stop doing certain types of fan films, haven't they? So I'd say so.
Collectively, across all franchises, fan makers and the fans that love their works probably represent millions of individuals. Why should participating in the fan works community require them to openly flout the law and subject themselves to risk, no matter how small?
That doesn't automatically make every consequence justified. Parodies don't face the same consequences, for example. You actually have to make an argument as to why there would be a consequence. After all, why would you want laws that enforce consequences for actions without a reason behind them?
Chuckle.
The goal posts have moved so many times that we are now playing CalvinBall.
The score is eleventy-seven to $Q.
The goal posts have moved so many times that we are now playing CalvinBall.
The score is eleventy-seven to $Q.
Because someone violated the long-standing common sense agreement between CBS and the fans. You have an issue with the current guidelines? Go take it right to the one who caused them to be implemented.
