Heidi Tandy, Legal Committee, Organization forTransformative Works
Fan creativity is as old as storytelling. Distribution is a lot wider these days, though. If you want a live singalong of Once More with Feeling you may need to inquire about rights. Threadless T-shirts with fannish themes. Legal concepts of transformativeness have broadened over the past 15 years, but there’s still a lot of confusion and paranoia—in part because fanworks are created by 12-year-olds and 90-year-olds with different levels of knowledge. Showed a video of various creations (my personal favorite: Rick Rolls Hostess-style snacks, tagline “Never Gonna Give Them Up”). Fan fiction, fan art, memes, fan video, music (filk, wizard rock, etc.). Five for Fighting’s “Superman” is a commercial example. “Rockingjay”—music based on Hunger Games themes. Ease of creation and sharing takes you outside your own garage. Videos with a million views for Harry Potter fan musicals.
Has worked in fandom for many years, working with websites and individual fans about the limits and potentials of online fandom. Many changes in levels of risk. Interactions between fans and corporations who’ve developed methods that don’t involve wholesale deletion of entire sites. Copyright not just as a tool of suppression, but as a regime with robust fair use. Connection to the culturally fraught status of fandom.
Fan art has sometimes been taken by owners of underlying work; have either purchased or licensed it—BBC has done this. (Japanese doujinshi has a similar history.) Still some friction between fans and owners. Diana Gabaldon, whose Highlander started, she admitted, as Doctor Who fan fiction, decided that fan fiction was like seducing someone else’s husband. But she doesn’t have the right to stop criticism and commentary; other authors are more understanding of fandom’s culture of creativity/love. SE Hinton, author of Outsiders, and one person who worked on Supernatural discussed writing “fan fiction” for Supernatural—directly from the creative team. Clark Gregg, from the Avengers, retweets fan art; something that wouldn’t have happened 7 years ago—fear of looking.
Most of the time, IP isn’t owned by the creators, though. Veronica Mars: Rob Thomas had to get permission from Warner to continue working on the story he began.
Last topic: Universal sued porn company for a porn version of 50 Shades of Grey, and the company defended with the argument that the works were public domain. So Universal’s counsel essentially ended up defending the validity/copyrightability of fanworks, or at least of works based on fanworks. What a change from 2003!
Dale Nelson, Vice President & Senior IP Counsel, Warner Bros. Entertainment, Inc.
Corporate perspective isn’t always heard at these events. Occasional undercurrent that corporations are against fans is not the case—don’t want to alienate our consumers. Tolerance, acceptance, attempt to strike the right balance. Opinions are personal, not necessarily to be attributed to Warner Bros.
WB is both a creator and a user of copyrighted works. We do clearance all the time to determine fair use/permissions. We also work to protect against infringement. We have a First Amendment right to use certain things in our own creations and don’t want to unbalance things. With fans, we take a position sometimes of tolerating what we think would still be found infringing because we can coexist.
How do you determine which is which? We look at copyright, TM, right of publicity, First Amendment, common sense, watchdogs—like the Chilling Effects Clearinghouse, EFF—that keep tabs on big content owners and whether they’re overreaching. Fair use: we think about the four factors, case by case. Fans sometimes misunderstand legal parameters—think parodies are always fair use.
What we didn’t seek permission for? Clip from movie featuring Marilyn Monroe, interposing drawing created by Bob Kane, in relation to a Batman movie release. Kane had a relationship with Monroe and used her as a model for Vicki Vale. Got a phone call from Monroe’s estate’s lawyers and we had a conversation about the right of publicity/copyright infringement. We felt it was a fair use.
Illustration from a book from 1880; was asked to clear it. Couldn’t identify illustrator. Given the date, we concluded that it was probably in the public domain worldwide. Even though there might be a few territories with the term, we’d take that risk.
Still from Sex & the City, with Mr. Big in his apartment—received a claim based on the book on the bookshelf to illustrate who he was.
Merchandising of pawns, bishops etc. in connection with Inception—cleared that as in the public domain.
Perfect Storm: claim under right of publicity statute. We prevailed after a lot of litigation.
Things other people didn’t seek permission for: art by a British artist using Looney Tunes characters, but with added commentary about desensitization to violence—what would it really look like if Bugs shot Daffy, she thought they’d have a good fair use defense. Dozens of Harry Potter companion books—Harry Potter and Christianity, Harry Potter and Judaism, What if Harry Potter Ran General Motors? As long as there’s no likelihood of confusion.
However, documentary about Elvis Presley w/over 300 clips from our movies, sometimes with entire performances, was not ok.
Mere drawing of Bugs Bunny: not a fair use or parody. We review a lot of apps.
Fan activity is fans having fun. Are they legitimate, are they acting from love? Or do they see fan activity as a loophole—make a fan film to showcase talent without having read Harry Potter? It’s not fans commercializing the property. We have exclusive rights; commercialization/merchandising in particular will draw our attention. But we tolerate a lot, including fan films, websites (the Leaky Cauldron, popular HP site); Dallas fan site; Lord of the Rings fan site; Quiddich players.
Harry Potter Lexicon: we drew the line at the commercial publication of the Lexicon, as compared to the encyclopedia found at his website. Proposed cover was like the covers in the UK of the books. Copied entire songs and spells. Entries were too detailed.
There was a strong fair use defense in terms of social utility; at the end of the day the judge decided that it wasn’t a fair use, but raised issues about a different Lexicon qualifying; a close case in some ways. We tolerate/encourage some fan activity, but there are limits.
Moderator: Rebecca Tushnet, Professor, Georgetown University Law Center
Q: Commercialization: but the companion books are commercial—how do you think about that?
Nelson: sometimes we don’t get into whether it’s fair use; we say if you don’t merchandise it then we won’t act, which is often their intention anyway.
Tandy: but if a site is earning money for domain registrations or fees through Amazon referrals, Warner will generally tolerate that too.
Nelson: some fan activities/sites do involve costs, and if it couldn’t run ads/raise a little money it wouldn’t exist.
For Tandy: how do you think about conventions, recouping money?
Tandy: first Harry Potter Orlando event, planning Spring 2002. Paramount raided a Star Trek convention & shut down the dealer floor, shutting down the stills that bit part actors were signing based on infringement claims. Terrifying! We were careful to create a way to have a con where the money was going to things like pizza.
Q: There are some things fans and corporate owners can agree on. Explore them: should there be a right of publicity? (Nelson: only for false celebrity endorsements.) Small claims? Tandy: no, that will get 13-year-olds in trouble. Nelson: Maybe; we’d likely be defendants more often than plaintiffs, though maybe that’s ok for things like photographers’ claims as long as there’s no injunctive relief available.
Q: how many of these rules are transparent to fans in advance? Do you give guidance to fans?
Tandy: there’s not much guidance out there; paranoia can suppress development of one’s own creativity. Lexicon case: Court said some of the use was fair use and gave a lot of guidance about the parameters for nonfiction; fiction is different.
Nelson: We used to have guidelines when it was more about costume parties. Difficulty is need to be flexible because every day brings something new. We don’t want outdated/misinterpreted rules. Fans have generally understood our parameters. People sometimes complain about fair use being hard to understand, but the results work well because of its flexibility.
Q: what’s legitimate: can you really judge who’s a legitimate fan? If you look at the Very Potter Musical with people who are doing it to showcase their musical talents, does that really change the analysis? What if they run ads alongside the musical? Why are those significant factors? Is it fairness? It doesn’t seem like either would affect WB’s ability to capitalize on their own markets.
Tandy: some things are just used to get attention.
Nelson: doesn’t mean looking into a fan’s soul, but fannishness helps us to decide whether we’ll object—having fun w/the property instead of posing as fan activity for commercial intentions. It usually is very clear what a fan is doing.
Tandy: pushing the lines is important: we were originally told we couldn’t have costume contests, and that’s dropped away.
Q: has the corporation made the fans contractors? Looking for things to give WB first dibs?
Nelson: can’t think of examples where we’ve had people looking for talent. But there are success stories of fans who’ve turned their activities into something pro.
Q: is there any chance of a union or guild for prosumers?
Tandy: a number of fans sometimes are concerned about using real names—worry about problems getting jobs, etc. That’s mostly gone in entertainment-oriented professions, but teachers have to worry about it. OTW—not a guild, but an outlet and a way station.