Crowd-Sourced Editorial Content and Fan Productions
[Note: this is accidentally on purpose the perfect encapsulation of the move to
monetize fandom: Four dudes sitting on a
panel and telling me the history of fan fiction.]
Moderator: Jay Kogan, DC Entertainment
A few years ago we talked about fan productions, new
business models. Most people had begrudging tolerance to noncommercial fan
stuff—commercialization was the big issue on taking action. Some people were
looking to get free publicity/promotion; Lucasfilms did some stuff on fan films
if Lucas owned the rights. Moving forward from that conversation to new
business models that allow fans to create new content, but IP owners partner in
a sense with the fans to create new IP in which both IP owners and fans can get
a commercial benefit. Can be tied to social media, which invites more
participation with users, gameplayers, fans.
Like digital music: recognizes demands, facts that fans will create.
Instead of fighting, figure out how to make money.
What’s going on out there:
What fans are doing and what’s being done through legit authorized
sources. Video touting Kindle Worlds,
which is hilarious because it presents fanworks as an incredible new
opportunity brought to you by Amazon. “Right where you want to be.” Um,
actually, no. Then Star Trek:TOS watching Miley
Cyrus twerk. Audience finds it
hilarious. Then a movie trailer
recreated in a game engine. Sorry, could
identify neither. But the engine allowed
pretty good replication. Then Buffy v.
Edward, which most of the audience took a while to warm up to (quelle surprise). Then a videogame play video with a profane
commentary track. Fan-designed Lost T-shirts and other tchotchkes from
CafePress. Where the Wild Things Are/some sort of inspired work—subject to
takedown claim.
Copyright/TM owners find some sites problematic, and enter
into deals allowing creation of fan-authorized merchandise. DeviantArt is an
example of art with characters. Business
model: run contest for IP owners; winners get prizers and owners can use the art
under license/assignment.
Panelists:
Matthew Bloomgarden, Alloy Entertainment, A Warner Bros.
Entertainment Company
Moderator asked him to tell us about the history of fan
fiction. B: traditionally it’s works by
amateur writers who write their own stories. Now we’re trying to monetize it,
v. stories on ff.net where they’re all available for free. No way to sort
through 600,000 stories (I hope no one tells him about recommendations), or to
make money, or to police that number of stories. Royalty is pretty competitive for Kindle
Worlds—similar to net profits from ebook sales. An official way out of the
mess/lost in the sea.
Q: is there a limit on how many there can be?
A: No, but there are rules on the world. Can’t crossover,
can’t use too many elements from the TV shows.
Can’t novelize the TV shows.
S. Gregory Boyd, Frankfurt Kurnit Klein & Selz, PC
Plenty of tolerated use in games. Some companies are doing revenue shares in “let’s
play” games where the voiceover is sometimes funny, critical, or not
either. Steam—largest games digital
distribution network. Steam Workshop: you can open up your game to
modding. Users can sell content and
receive 25% for that. Could we have too
much? We could, but in medium/long term iTunes quality will emerge: people will
buy the good stuff and it will percolate up to the front page.
Q: do you find that authorized fan fiction etc. causes a
decrease in distribution of unauthorized product/move to legitimate product?
Bloomgarden: Lots of press about Kindle Worlds/Gossip Girl
in particular; only about 20 official books in that space. So they’re not lost. More are added on a regular basis.
Boyd: wasn’t it a success when the Vampire Diaries writer returned?
Bloomgarden: the writer who wrote the first 7 books stopped
because of creative differences. She
went away with stories she wanted to tell, and now she has the ability to tell
them; the fans wanted her take. She’s
picking up where she stopped.
Q: now she’s earning money in her fan capacity—is she making
less than she would’ve?
A: she’s said she’s doing it more to get her stories out
there; yes. It will open the door to
other things for her. (Because she wasn’t
known before, right?) Another fan who
just wrote VD stories—very talented, now we want them to write official books—crossover
both ways.
Art Neill, New Media Rights
Q: revenue sharing models like this don’t exist on video
sites. Who owns what on Kindle Worlds?
A: you give up to your rights to the story in exchanged for
a fixed percentage. All rights go into the program but you’re guaranteed
royalties (as traditionally authors were too—it’s not a trade).
Q: can you publish elsewhere?
A: he doesn’t know. I
do: no.
Q: what about derivatives?
A: No. We included
payments as presale element and avoid any claims and you’ve already agreed that
we can use your work for an episode (in case you thought it was copied but we
were really already working on it).
(This seems slightly in tension with the claim that the payment is the
same as for a traditional author: the payment is the same, but the content
owner/publisher receives more for
that royalty.)
Neill: discussed the Buffy
v. Edward takedown and controversy. Content
ID took 3 months. We were told it had to
be monetized by them or it would go down. But it’s fair use.
Current system doesn’t leave any room for monetization by
uploader—split between Content ID claimant and Google.
Q: if they accept money for something that’s not authorized—do
they then authorize it? If there are
third party participation deals, do they have to start sharing the money?
Boyd: Many properties are often involved with videogame
content—music, character claims can be made even when the game company is fine
with it. Lots of times the contract didn’t
even anticipate that in the game-music licensor deal.
IFPI cited the Star Trek Miley Cyrus video in its report on
monetization, but when we tracked it back the original video was not monetized;
it’s still there not monetized. There are multiple unauthorized versions that
have been monetized.
Kogan: we’ve seen fan films that were noncommercial, then
monetized by someone else.
Neill: Many copyright holders = much confusion. Many people are now making more money on
monetizing third party content than on their own content.
Boyd: done more deals with people with large followings than
I’ve done takedown or revenue share claims. The business case is clear for
him. Can’t say that this is the future
model, though. Old UGC case: Duke Nukem,
decided when internet had only been publicly available for a year. The person
who gathered the fan-made levels from all over had a much weaker case than a
fan who made her own and tried to monetize on her own.
Neill: Many questions are still outstanding: Marvel v.
NCSoft settled.
Boyd: We’re giving people “thought processors”—they can make
anything, including existing characters; that’s internally policed; we don’t
want it because it breaks the fourth wall. Players don’t want to see Batman
outside of a Batman game.
Q: best practices?
Neill: we’re seeing online video explode. There are
different categories of videos, some critical. Good to think about fair use not
just legally--§512(f)—but publicity penalties from overreach are painful. Room to create more than sharecropping space,
but where videogame creators get to get rewarded from significantly adding
value. You get better content. Content owners can give people new ways to
take part—right now people don’t necessarily know where to go with their good
ideas. Steam has taken modding from
random websites to coherent.
Boyd (I think): TV and film has to change its culture; it’s
afraid because it has a long history and also a bunch of talent agreements—videogames
didn’t have that entrenched culture.
Kogan: film agreements often require exclusive rights—that can
be a barrier to fan films.
Are you concerned about infringement in Kindle Worlds? DMCA?
A: we have that in our Amazon contract, if works go outside
the parameters—it will be taken down.
One big example is film/TV—hard to open that up to fan fiction/fan use
because of all the guild requirements.
WGA requires payments. Opens up
so many doors it’s easier not to get into it. In publishing it’s just the
author, and thus easier.
Boyd (I think): they do recognize, but they have a list of
reasons it’s hard to change.
Kogan: have you seen a case where an IP owner pursues rights
to a fan creation it loves? Marvel is
said to have taken fan images of Hulk and used them in the background.
Neill: see it a lot—people put a lot of work into existing
characters/content, taking them to new places.
But what happens is that if it’s not a strong fair use argument and not
in Steam/Kindle Worlds it goes into a strange place; level of creativity doesn’t
matter. Almost out there for the taking—Anderson
v. Stallone.
Bloomgarden (I think): Nobody wants to miss out on the next 50 Shades of Gray.
Neill: You either do a deal or help the person take it a
different direction.
Kogan: Wasn’t it the fan fiction that brought her the
notoriety for 50 Shades?
A: but they changed the connection to Twilight.
Kogan: 60 Years Later/Catcher
in the Rye case?
Neill (I think): All the things we did when we were learning
how to be creators—write extra chapter, make our own ad—can be shared so
easily. Difference is that now these
things have real value. (Um, they always
did.) Issue is creating legal structures and values. There are situations where
a bulk of what’s added is really remix from the downstream creator, but
sometimes it’s almost verbatim.
Kogan: how does crowdfunding change the dynamics of fan
productions?
Neill: You always have to have the rights or it will be
taken off it comes to the attention of the platform, because the platform doesn’t
want that. Kickstarter: the original creator of GI Joe wanted to launch a new
military series. There were similarities
with GI Joe. Turned out that the movie
company that got his attention had done a GI Joe fan film; he wanted to work
with them. Did fair use/truthful: from the creator of GI Joe.
Bloomgarden: with the Vampire Diaries, there were
contract/noncompete issues—we agree not to compete with the books we give the
publisher, which in a way did happen when LJ Smith returned to the field.
Kogan: when you make deals with CafePress/DeviantArt, you
try to work into the deal additional obligations to restrict/prohibit/police
their site from third party infringements, so you aren’t dependent on the DMCA,
in exchange for authorized fan art.
Q: did Lionsgate say they could do an official crossover with
Buffy, and that meant the fourth
factor favored them?
[sexist joke omitted]
Neill: No, they didn’t.
There are a lot of nonattorneys doing the work—they’re just hired to do
takedowns; didn’t necessarily have the sophistication—or the will—to do that
analysis. There’s a real need to get out
there and do workshops and talk to creators and raise awareness of basic
copyright issues. That would help everyone.
Q: when you acquire fan content, is it work for hire?
Bloomgarden: yes, that will come up in 35 years. Hard to make the claim it’s a contribution to
a collective work even if it is part of a series.
Kogan: could acknowledge that it’s using underlying
copyrighted content—they’re frozen, but they could stop you from using it going
forward.
Q: MicroStar, given
the tech at the time: as a practical matter, user couldn’t collect levels and
sell them in retail stores.
Q: what about crowdsourcing, when lots of people come
together to create one thing? Star Wars
Uncut, where people contribute their own reshot scene of Star Wars and they’re sewn together.
[discussion of contracting electronically—what works? Acting at least in the US as if e-signing was
sufficient; can embed links to short licenses/hashtags for quick licensing for
some game content]
Q from Joe Gratz: when he thinks fan fiction, he thinks of
slash. Will copyright owners try to go
after fanworks that go outside Kindle Worlds guidelines?
A: great point. They will fall outside official
licensing. Those are the works that have
the best fair use arguments.
Kogan: most IP owners prefer to look the other way rather
than lose a case that would set a bad precedent. Vivid Entertainment: porn parodies. Almost
every studio’s properties are used. Three Stooges sued them; people are afraid
because it’s costly and a loss would not be good. They want to bring it on.
Boyd (I think): Existing market was argued in Perfect 10.
Establishing a market can help plaintiffs.
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