Thursday, September 16, 2010

Fan films and German copyright law

John Walliss has an interesting article in the new issue of Transformative Works and Cultures, Fan filmmaking and copyright in a global world, in which he reports that that the relevant parties’ understanding of German copyright law—specifically, a director’s inability to waive his rights—led a game company to prohibit the release of a noncommercial fan film.

[7.3] Two years into the project, in early 2005, a legal support assistant from Games Workshop contacted Vu with a copyright disclaimer to appear at the beginning of the film. During these discussions, Vu told the company that under German copyright law, he would have "unrevocable [sic] rights" to the film as "[his] creation" (Torw├Ąchter, posting at Forenplanet, "Clarifications," July 11, 2007). This led Games Workshop to investigate the German copyright situation; after taking legal advice, it banned the release of the film in May 2005. Vu, however, claims he did not receive this e-mail from the company's lawyers, and he continued to work on the film in good faith, completing it the following November. When he announced this via the Damnatus Web page, Games Workshop wrote to him again to restate the ban.

[7.4] A month later, it was announced that an agreement had potentially been struck to overcome the copyright issues. This quickly broke down. After taking further, external, advice, Games Workshop amended its IP policy in mid-April 2006 to ban all fan films. Four months later, the legal and licensing head of Games Workshop, Andy Jones, wrote to Vu telling him although "the great endeavor upon which you have embarked is truly to be admired," because German copyright law would not allow the filmmaker to assign copyright to the company, "it is impossible for us to countenance the release—for free or otherwise—of this movie project." The company, Jones insisted, "must protect our IP. We have no choice…we cannot have elements of our intellectual property 'universe' owned by a third party." Consequently, in October 2007, Vu announced on the Damnatus Web page that the project had been put on indefinite hold.

Further fan reactions/various overstatements followed. Despite those, it seems unlikely that Games Workshop would have “lost” its copyright by failing to object to the film—there would certainly not be a loss against the world, and I would also be very interested to hear what the German position is on further derivatives of a movie based on an existing work where the moviemakers are licensed only to create the movie. Regardless, it’s an interesting example of apparently unwaivable rights defeating what seems to have been an otherwise worthwhile transaction.

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