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.
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