Intellectual Property

  • OTW Fannews: Fandom Enabled

    By Jennifer Rose Hale on Saturday, 9 August 2014 - 5:19pm
    Message type:

    Industrial machinery with text that reads Fandom Enabled OTW Fannews
    • At Aeon Michelle Nijhuis discusses genderswapping with her daughter. "When I first wrote about my daughter’s Hobbit genderswap, many people said that fanfiction writers were way ahead of us, and so they were: Female Bilbo is a familiar fanfic character. My daughter isn’t the first reader who’s wondered what would happen if a girl stepped into Tolkien’s wonderful, timeless story, and I hope she’s far from the last."
    • Public Knowledge noted that Hasbro is now offering the option of fan-made merchandise through 3-D printing. "Many of these types of fan works are likely protected by fair use. But creating and selling My Little Pony figurines is something that, at a minimum, Hasbro could have tied up in lawsuits for years. To its credit, Hasbro decided not to sue this community of super fans. Instead, they found a way to give them a license to create and profit from their creations. Creators on SuperFanArt can now confidently sell fully licensed versions of their works. The community gets the ability to thrive, Hasbro gets to build good will (and, presumably, a cut of sales), and no one gets sued."
    • NBC News also suggested that 3-D printing might revolutionize the toy industry. "These fan creations are enthusiastically shared on the Internet, kind of like fan fiction, in which people write their own versions of stories that they love. These designs are going to circulate anyway, Liverman said, so companies might as well offer them alongside their own and encourage people to interact with their brand....Charles Mire, founder of Structur3d Printing in Ontario, likens the trend to 'cosplay,' where people dress up like their favorite characters."
    • A The New Yorker featured the reason why The Sims became the first game to represent LGBT experiences, and how this was crucial to its success. "During The Sims’s protracted development, the team had debated whether to permit same-sex relationships in the game. If this digital petri dish was to accurately model all aspects of human life, from work to play and love, it was natural that it would facilitate gay relationships." Instead, "[t]he controversy came this year, when Nintendo released, in the West, its Sims-esque video game Tomodachi Life, a game in which same-sex relationships are forbidden. Characters in Tomodachi Life can bicker, flirt, fall in love, marry, and move in together. But, for many gay people, the game’s denial of same-sex relationships reflected real-world systems that had been built to deny their lifestyle and their biology."

    What fandom-made events or works are your favorites? Write about them in Fanlore! Contributions are welcome from all fans.

    We want your suggestions! If you know of an essay, video, article, podcast, or link you think we should know about, comment on the most recent OTW Fannews post. Links are welcome in all languages! Submitting a link doesn't guarantee that it will be included in a Fannews post, and inclusion of a link doesn't mean that it is endorsed by the OTW.

  • OTW files amicus brief in Capitol Records vs Vimeo

    By Janita Burgess on Thursday, 31 July 2014 - 5:11pm
    Message type:

    OTW Spotlight on Legal

    Together with a number of allies, OTW's Legal Committee filed an amicus brief Wednesday in the U.S. Second Circuit Court of Appeals in the case of Capitol Records v. Vimeo. The case began when the record labels sued Vimeo, alleging that a number of fanworks hosted on Vimeo's site infringed the record companies' copyrights.

    At this stage of the case, the question before the court has to do with the Digital Millennium Copyright Act (DMCA)'s "safe harbor" provision, which protects content hosts like Vimeo (and the AO3) from copyright liability for material posted by their users. Specifically, the court is addressing what constitutes "red flag" knowledge of infringing material that would require the hosting service to remove the material even without receiving a takedown notice. In the brief, the OTW and its allies argue, among other things, that the standard set by the trial court would place unreasonably high demands on sites that host user generated content and would chill valuable speech protected by the fair use doctrine.

    One of our partners, the EFF, has posted about the filing, stating "The safe harbors are critical to the Internet's success as a forum for innovative art, discussion, and expression of all kinds, forestalling crippling litigation that would force most websites to close their doors. Yet the district court created new liability, contrary to the law and the intent of Congress."

    Our joint brief highlights the value of fanworks and remix creativity, and explains how increasing liability for content hosts would chill creativity and undermine the objectives of the DMCA's safe harbor provisions, saying:

    "The burden would be especially significant for the many small and nonprofit platforms that host remix videos. Such videos often include music from a variety of sources, but the staff that run these sites won’t necessarily be music specialists able to determine when a given track was recorded. Indeed, many remix videos include multiple tracks, making the task still more challenging. The effect of this significantly increased cost and burden, combined with the accompanying uncertainty about potential liability for pre-1972 audio, would almost inevitably be to chill investment in or development of innovative services that might include such content. That chill, in turn, will inevitably stifle the creative works that depend on those services to reach an audience."

    We will keep fans informed on future developments in this case.

  • OTW Fannews: Fans Getting Informed

    By Claudia Rebaza on Wednesday, 30 July 2014 - 5:11pm
    Message type:

    Banner by Sidhrat of one woman whispering to another who is cupping her ear.

    • When Amazon launched Kindle Worlds, OTW Legal offered advice to fans about its terms. Now, the OTW's ally organization, New Media Rights, has also examined the pros and cons of its publishing agreement with the post "Fine print to plain english: things to look out for as a Kindle World author."
    • The Bookseller's feature on author Rainbow Rowell's fanfiction past had an interesting response from J.K. Rowling’s literary agency, which set out guidelines for writers. "Our view on Harry Potter fan fiction is broadly that it should be non-commercial and should also not be distributed through commercial websites. Writers should write under their own name and not as J K Rowling. Content should not be inappropriate – also any content not suitable for young readers should be marked as age restricted.”
    • Jennifer Kate Stuller made available her keynote presentation on lessons learned from Whedonverse activism. "[T]his was the most personal presentation I’ve ever given, and I shared both strengths and vulnerabilities that I haven’t shared in a public forum before – doing so with the hope that personal braveries would have a communal impact. I looked out and saw a sea of tissues (and kerchiefs!) being drawn from bags and pockets. Hands and sleeves wiping eyes and noses. I was overwhelmed by your response (and might have missed a couple of sentences). More than that, your collective willingness to share your braveries, your sadnesses, your joys, your yearnings for connections and manifestations of love with me in that space proved what Tanya emphasized in her opening remarks – 'We’re here because of each other.'"
    • OTW Fan Video & Multimedia Chair Tisha Turk will be helping fans and the general public become more informed thanks to new award funding. "Despite the fact that vidding has been around for decades, little academic scholarship exists on the subject. Turk’s work will explore the rhetorical effects of images and music in vids, expanding and contributing to an underrepresented area of fan studies. Her findings will lead to a greater understanding of how media fans critically interact with digital entertainment."

    What lessons do you think need to be shared with fandom? Write about them in Fanlore! Contributions are welcome from all fans.

    We want your suggestions! If you know of an essay, video, article, podcast, or link you think we should know about, comment on the most recent OTW Fannews post. Links are welcome in all languages! Submitting a link doesn't guarantee that it will be included in a Fannews post, and inclusion of a link doesn't mean that it is endorsed by the OTW.

  • OTW Fannews: Global Fandom

    By Janita Burgess on Monday, 28 July 2014 - 5:03pm
    Message type:

    OTW Fannews Banner: Global Fandom

    • The story of female volleyball fans in Iran was covered by many sites, including France24. "[T]hese sporting events are only for male eyes, since the 'morality police' — a special police force that seeks to fight 'moral corruption' and to combat those who violate Islamic law — have been systematically preventing women from attending volleyball tournaments since 2005. However, this prohibition does not apply to foreign women." While some women were able to get into games with the aid of foreign fans and by wearing the other team's jerseys, 50 women were arrested for attempting entry. As one woman said, "I don’t want to have to resort to ruses in order to support my team. I want to be able to walk into a sports stadium proud of my identity as an Iranian woman and a fan of my national team."
    • The Korea Times reported on how Korean fans making subtitles were being sued by U.S. drama producers. "Police are now questioning the 15 who were booked without physical detention. Investigators said they made Korean subtitles of American television dramas and movies without getting prior consent from the original producers and circulated their translations among Internet users through large online cafes. A police officer said on condition of anonymity that U.S. television drama producers tend not to exercise their copyrights if individual citizens violate the law. But, he said, the U.S. producers took legal action against illegal subtitle makers as they believed that the violators circulated their subtitles rapidly through the Internet and as a result the original producers experienced negative fallout on their earnings."
    • The Telegraph India talked with fans about their World Cup passions and which countries they supported. "Germany’s clinical 7-1 demolition of Brazil not just reignited the clash of continents at the Fifa World Cup but also confirmed that Calcutta has diversified its allegiance. Germany, The Netherlands, Spain, England, France and Italy now evoke equal passion among the city’s football faithful as the traditional Selecao and La Albicileste." Part of this difference is generational and star driven but "[w]hile age is a rough line of division that splits loyalties, it is not a watertight one. Families too apparently help shape who supports whom."

    What stories do you have to tell about your local fandoms? Write about them in Fanlore! Contributions are welcome from all fans.

    We want your suggestions! If you know of an essay, video, article, podcast, or link you think we should know about, comment on the most recent OTW Fannews post. Links are welcome in all languages! Submitting a link doesn't guarantee that it will be included in a Fannews post, and inclusion of a link doesn't mean that it is endorsed by the OTW.

  • OTW Fannews: Legal Confusion

    By Kiri Van Santen on Friday, 18 July 2014 - 5:17pm
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    • The Washington Post was one of many media outlets covering the U.S. Trademark Office's decision to cancel the Redskins trademark registration. "The 99-page decision by the Trademark Trial and Appeal Board said the team’s name and logo are disparaging. It dilutes the Redskins’ legal protection against infringement and hinders the team’s ability to block counterfeit merchandise from entering the country. But its effect is largely symbolic. The ruling cannot stop the team from selling T-shirts, beer glasses and license-plate holders with the moniker or keep the team from trying to defend itself against others who try to profit from the logo."
    • The Wisconsin State Law Library pointed to a book about trademarks and fan-created content in the wake of the Klinger v. Conan Doyle Estate decision. The book in question is about trademarks and fan-created content from the perspective of trademark owners which doesn’t really acknowledge fans’ rights to make fair uses— but instead is about “tolerating” use. It’s an older work, and an example of the way that trademark owners used to assume that they were always the ones who got to decide how their works would be received.
    • io9 put a spotlight on a study about filk. "Women in the filk community are more likely than men to create original melodies to accompany their lyrics, while women are only somewhat more likely to borrow from others' lyrics than are men. Because filk is often viewed as an imitative culture, the tendency of women to depart from that ethos in creating their own melodies seems significant...female respondents were much more likely to define fair use as not profiting from others' work, and somewhat more likely to define it as giving credit to the original author and making private as opposed to public use of a protected work."
    • The YALSA blog posted about Fandom and Fair Use but made some problematic claims. For example, it does not actually discuss what fair use is and provides questionable examples. Crunchyroll claims to be fully licensed and even Disney has now embraced user-generated content. Instead what the YALSA post demonstrates is an example of copyright confusion: people think that some things aren’t “allowed” when in fact either fair use law or licensing is on their side.

    What confusing legal fandom issues have you come across? Write about them on Fanlore! Contributions are welcome from all fans.

    We want your suggestions! If you know of an essay, video, article, podcast, or link you think we should know about, comment on the most recent OTW Fannews post. Links are welcome in all languages! Submitting a link doesn't guarantee that it will be included in a Fannews post, and inclusion of a link doesn't mean that it is endorsed by the OTW.

  • OTW Fannews: Remembering the past

    By Claudia Rebaza on Sunday, 13 July 2014 - 5:54pm
    Message type:

    Banner by Bremo of a timeline showing different fannish platforms starting with Geocities and ending with AO3

    • At The Atlantic, Courtney Klauser discussed her education in social networks thanks to fandom. "Looking back, I most miss the personal anonymity; an online existence without photography or video, a time when it was normal not to use your real name, when people could interact without demographic data being harvested for advertisers or shuffling people into neat demographic categories in the name of improved user experience...Yet the online world where I first encountered the pleasures of fan culture no longer exists at all."
    • Corinne Duyvis wrote at YA Highway about lessons learned while roleplaying. "My absolute biggest hobby as a teenager was online X-Men roleplaying...Roleplaying wasn’t fanfiction like most people know it, but it’s probably the most apt comparison—and that’s why it baffles me when people dismiss fandom as a waste of time for writers, or even call it actively damaging. It’s often the exact opposite. Without fandom, I wouldn’t be writing today. I wouldn’t have a shiny hardcover on shelves as of this month."
    • Author Peter David re-posted a poem about fandom he'd published in 2001 about the spread of fandom online. "And the Grynch straight away fashioned 'Fandom Dot Com/ By fans and for fans,' said the Grynch with aplomb/ The fans, they just loved it, they flocked by the ton/ And they told all their friends, and they came on the run/ Created new websites and posted the things/ On Star Wars, Godzilla, and Lord of the Rings/ The theory, you see, was by acting as one/ The fans would not ever be put on the run/ By studio lawyers with frozen-fish faces/ Subpoenas and letters and leather briefcases."
    • Elizabeth Minkel wrote in New Statesman about changing times. "It might be easy to forget that a little more than a decade ago, Warner Brothers was yanking down Harry Potter fan sites without warning, particularly those that 'sent the wrong message', like speculating that a character could be gay. Now media corporations are actively trying to create the kind of spaces for fan engagement that mimic the volume and enthusiasm of what’s historically been built from the bottom-up – organic celebrations of (and critical space to examine) a book or movie or television show or band. Now we’ve got 'official fan fiction partners' of a book or a movie, and even corporate-sponsored incentive – rewards, like access to special content, that sort of thing – to create more content in their spaces."

    What parts of fandom history do you remember? Write about it on Fanlore! Contributions are welcome from all fans.

    We want your suggestions! If you know of an essay, video, article, podcast, or link you think we should know about, comment on the most recent OTW Fannews post. Links are welcome in all languages! Submitting a link doesn't guarantee that it will be included in a Fannews post, and inclusion of a link doesn't mean that it is endorsed by the OTW.

  • OTW Fannews: Fandom Legal Topics

    By Claudia Rebaza on Tuesday, 10 June 2014 - 4:23pm
    Message type:

    Banner by Sidhrat of a pair of glasses laid on an open book

    • The Age reported on a lawsuit involving the founders of The Writers Coffee Shop. "The lawsuit asks the court to recognise that TWCS is an ongoing partnership and, as a partner, Pedroza is entitled to 25 per cent of the profits. Pedroza and Beebe are seeking...'to trap funds not yet paid by Random House'" as a result of their rights purchase for Fifty Shades of Grey. The plaintiffs claim that Amanda "Hayward, 'fraudulently' restructured TWCS under the guise of tax minimisation, without the knowledge of the partners, so payments from the Random House deal, signed in March 2012, flowed exclusively to herself."
    • A post at Screen Invasion suggested that companies using Amazon's Kindle Worlds were setting a precedent for the “potential market” factor of fair use. However, it is the pornier side of fanfiction that is likely to be unaffected. "TV’s GG can show a blush-worthy encounter between Chuck and Blair in his limo’s spacious backseat...but Kindle Worlds can reject a GG fanfic that describes a similar tryst based on the author’s word-choice. Ergo, sites featuring only blue fan-fiction do not impact the same market(s) as their un-obscene peers." This argument tracks to the case involving The Wind Done Gone, since part of that legal argument was that there was no lost revenue because Margaret Mitchell's estate would never have licensed such a work.
    • Evergreen State College's student newspaper posted an open letter from faculty about threats to academic freedom involving a parody theater piece about Disney content. "On Monday of week eight, without consulting the faculty sponsors, Dean Reece issued a written request to fundamentally alter the script, with indication that the college would prevent the students from using campus facilities to perform the script as written." The letter cited the fair use aspects of the work and their belief that a fear of legal action was behind the effort to alter the performance.
    • TIME looked at aspects of One Direction fanfiction following a high-profile fanfic book deal. "Jamison also notes that the idea of making money from fanfiction — something long seen as dubious among fans, even as recently as 50 Shades of Grey — doesn’t seem to be so strange to younger and newer fanfic writers...After all, it’s much less legally thorny to file off those serial numbers when the inspiration is reality: changing the names of a boy band doesn’t risk overstepping the fair use of someone else’s creation. And besides, it’s a time-honored tradition. As Jamison says: 'Every fiction author bases their characters on real people.'”

    What fandom-related legal issues have you heard about? Create some entries for them on Fanlore! Contributions are welcome from all fans.

    We want your suggestions! If you know of an essay, video, article, podcast, or link you think we should know about, comment on the most recent OTW Fannews post. Links are welcome in all languages! Submitting a link doesn't guarantee that it will be included in a Fannews post, and inclusion of a link doesn't mean that it is endorsed by the OTW.

  • OTW Fannews: Changing how things are done

    By Claudia Rebaza on Saturday, 31 May 2014 - 4:38pm
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    • PBS's Idea Channel did a piece on "The Future of Fandom" and featured discussion about fans' effects on copyright, including the stance of the OTW and the work of OTW legal staffer, Rebecca Tushnet. "In 'I'm a Lawyer, Not an Ethnographer, Jim': Textual Poachers and Fair Use, Rebecca Tushnet explains Henry Jenkins' sense that 'fans usually enjoy [an original work], but also see its flaws and gaps, which their work attempts to address and, sometimes, redress.' Fan works like Fanfic, fanvids and remixes celebrate, critique and extend beloved media, but they also exist in uncertain legal territory. They're necessarily built on copyrighted material, the owners of which are occasionally super hostile to any co-option, even loving co-option." (Transcript available)
    • While not directly connected to fandom, a recent court ruling raised concerns about what can be published about people online. NPR's All Things Considered discussed the potential changes. "Usually, the content that we talk about with the right to be forgotten is much more salacious. This guy wanted an old debt to be removed from his Google search results. He took his complaint to the Spanish Data Protection Agency, who determined that he did have a case for the right to be forgotten. And the agency ordered Google to remove links to that content. It moved through the courts as Google appealed it and the case that came down was shocking, I think, for most people."
    • Another court ruling included discussion about fan sites and works more specifically. The Supreme Court ruled on the case of Petrella v. Metro-Goldwyn-Mayer, a case in which the owner of a screenplay alleged copyright infringement. In her opinion, Justice Ginsburg stated the following: "[T]here is nothing untoward about waiting to see whether an infringer’s exploitation undercuts the value of the copyrighted work, has no effect on the original work, or even complements it. Fan sites prompted by a book or film, for example, may benefit the copyright owner. See Wu, Tolerated Use, 31 Colum. J. L. & Arts 617, 619–620 (2008). Even if an infringement is harmful, the harm may be too small to justify the cost of litigation."
    • While some think that fanfiction should be licensed in the future, the Deseret News wrote about Lucasfilm's decision to wipe out earlier canon, turning it into licensed fanfic. "Lucasfilm announced the Star Wars Story Group in January, which was created specifically to sift through the plethora of Expanded Universe content and decide what was and wasn’t canon, according to BleedingCool.com. The answer? Apparently none of it was. But it’s not all bad news for Expanded Universe fans...Instead, it will be rebranded as 'Star Wars Legends' and continue to be published and made available to fans."

    What examples of fans' changing things have you seen? Write about them on Fanlore! Contributions are welcome from all fans.

    We want your suggestions! If you know of an essay, video, article, podcast, or link you think we should know about, comment on the most recent OTW Fannews post. Links are welcome in all languages! Submitting a link doesn't guarantee that it will be included in a Fannews post, and inclusion of a link doesn't mean that it is endorsed by the OTW.

  • USPTO/NTIA multi-stakeholder forum on the DMCA

    By Claudia Rebaza on Friday, 23 May 2014 - 3:34pm
    Message type:

    Banner by Erin of a spotlight on an OTW logo with the words 'Spotlight on Legal Issues'

    OTW's Legal Committee made another appearance at a U.S. Patent and Trademark Office event, this one at a multistakeholder forum in Berkeley, California on May 8. Legal Chair Betsy Rosenblatt spoke about protecting transformative creators, whose voices might easily be lost or ignored in a discussion focusing on anti-piracy. Stating that small entities have unique concerns regarding standard processes, especially when they are volunteer-run such as the OTW, Betsy also mentioned the importance of pseudonymity. Her segment begins at 5:12 in the Part 2 video. (No transcript available). Other participants included copyright stalwarts like the RIAA, MPAA, and Copyright Alliance; internet freedom and free expression advocates like the EFF and New Media Rights; and content hosts ranging in size from Google on the large side to DeviantART on the small side.

    The meeting was designed to get participants’ views about benefits, drawbacks, and strategies for standardizing the DMCA notice-and-takedown procedure. The USPTO/NTIA representatives emphasized that this is not a lawmaking endeavor (nor could it be, since those bodies have no influence on copyright legislation), but rather an attempt to make current laws operate better than they currently do.

    The meeting resulted in the formation of a working group. The OTW has a seat on that working group, and will continue to voice the interests of transformative creators and small service providers throughout the process. It's not yet clear what the result of the process will be. Possibilities may include a set of “best practices”; a set of plug & play tools for rights-claimants and ISPs to use and adopt as they wish; or educational tools.

    Because the OTW will be an official part of the working group process, this is an opportunity for OTW members' voices to be heard. What would you like to see become a more standard part of the notice-and-takedown procedure? What would you want the procedure avoid? Let us know!

  • OTW Fannews: Tech and legal developments

    By Claudia Rebaza on Thursday, 22 May 2014 - 4:52pm
    Message type:

    Banner by Bremo of webpages that are mentioned in this article

    • The New York Times Bits blog was one of several places highlighting the work of OTW legal staffer Casey Fiesler, who examined Terms of Service at popular websites. Among them was DeviantArt, Fanfiction.net and "Asianfanfics, a small fan fiction site, whose terms of service provisions, the researchers wrote, allowed 'for the site to essentially do whatever they like with whatever is posted there without any notice or attribution to the creator.'" The report included a handy infographic. A future part of Casey's study will involve the AO3.
    • The Mary Sue posted about using Storium. "As I quickly figured out, Storium is essentially an elegant framework for simming, with the added kick of card game-ish mechanics. For the uninitiated, a play-by-post game (also called a sim) traditionally takes place on a message board or through an email list. There’s a basic premise, and a host who wrangles the players. Depending on the game, players either create whatever characters they fancy, or are given clearly defined roles...The players then take turns writing chapters or scenes, typically tagging other characters to pick up where they left off."
    • Perhaps relatedly, Brie Hiramine asked at Flavorwire if the fansite is dead? "I can’t remember the last time I visited a fan site to read news or discuss anything. And that’s simply because our ever-flowing stream of content means that fan culture is more integrated into our everyday lives (and therefore, our Internet lives) than ever before. People consume fan-specific news on more mainstream platforms, without needing to go to a dedicated site to do so. Thank you, Facebook feed! Thank you, Twitter debates! Thank you, Reddit! And inevitably, the distance between consumer and producer grows ever-smaller."

    What legal and tech developments have you seen that are fandom-related? Write about it on Fanlore! Contributions are welcome from all fans.

    We want your suggestions! If you know of an essay, video, article, podcast, or link you think we should know about, comment on the most recent OTW Fannews post. Links are welcome in all languages! Submitting a link doesn't guarantee that it will be included in a roundup post, and inclusion of a link doesn't mean that it is endorsed by the OTW.

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