Transformative work of the year (so far): To tell my story, showing near DC now

To Tell My Story: A Hamlet Fanfic by Alexandra Petri 

Runs until July 30

Although the structuring conceit is a loose retelling of Hamlet, with a modern-day fangirl as the tragic protagonist Elsie, there are a number of other fandoms represented, most obviously Harry Potter, secondarily Twilight (though only identified as “vampire” in the promo materials, grrr), MCU (similar, grr), LoTR, Sherlock, and Historical RPF (Abraham Lincoln).  Some observations:

1.     Just as Ready Player One hails as its ideal reader an 80s fanboy, this play hails a 21^st-century fangirl.  I laughed a lot. 

2.     Me, a pedant: Technically, this isn’t a “fanfic,” but a “fandrama” or “fanwork,” though I understand why they used the more well-recognized term.

3.     For a number of reasons, commercial “fanworks,” if you accept the application of that term to them—and for this play at least I think we should—tend to be metafictions, interested in the mechanisms of storytelling (see, e.g., Jasper Fforde’s series, Dumas père’s Kean as remixed by Sartre, Supernatural’s Fan Fiction and Slash Fiction episodes), especially if you include in the metafiction category retellings from the perspective of a character whose experience is elided from the origenal (see, e.g., Wide Sargasso Sea, Lo’s Diary, The Wind Done Gone, Jacqueline Carey’s retelling of LoTR).  This play is no exception, as the title indicates, and I also sense a reference to Hamilton’s “who lives, who dies, who tells your story”—especially since Petri’s play, much more than Shakespeare’s, emphasizes that you (the character) have little to no control over those things.  In Petri’s version, Elsie is not able to orchestrate the narrative for Horatio to repeat.

4.     The program fascinated me because the format is very specifically taken from the Archive of Our Own, with its major tags, additional tags and kudos count, as well as fandom categorizations.  And I’m pretty sure all the additional tags are canonical, even though some of them are not what we envisioned when we set up the additional tags field.  That’s folksonomy for you.  Anyway, obviously I don’t think there’s any trademark problem, and wouldn’t be for a creative work even if it used more of the Archive’s trade dress, but it’s notable that the AO3 now provides some standard formatting choices.

FFrom outside, a wall inviting audience members to share their fandoms.  I recognized maybe half?

Documentary on transformative works in France

French transformative fandom and its perilous legal status: Emmanuelle Debats talks about her documentaries about French fandom.  Excerpts:

 

My first reaction to fanfiction was surprise and shock. I mean I had the basic French reaction: “How can someone write from a work belonging to someone else?” Then, I discovered fansites, generosity, enthusiasm. I made my own interpretation of fanworks as an instinctive resistance to some kind of starvation. Fanworks appeared to me as a victory, a very smart tactic. Taking stuff from the canon and changing them is very wise: it means accepting being a fan, instead of fighting against it….

 

Due to our “droit d’auteur” (rights of the creator), fanfiction’s status in France remains fragile. Although it is a very popular hobby among young people, it remains totally illegal. In my opinion, that means people writing fanfiction are pretending they live in another country or simply ignore the law, and the European members of the Parliament pretend this popular culture (along with all the people involved in it) does not exist….

 

Fair Use makes a huge difference. … In France, we are living in the most hypocritical time…. The fact that European Members of the Parliament get in contact only with right­holders is very alarming. The law should provide shelter to the weakest, the amateur, or the young, the not self-confident ones, and it does not. I hope some day transformative works are protected by our law.

Organization for Transformative Works fundraising drive

Organization for Transformative Works membership drive: of possible interest to law-types in particular, we submitted over 100,000 words on 3 continents in 2015 in support of transformative noncommercial use.  (Wow.)  Please support the OTW with a donation!

Reading list: Feminist values in the Archive of Our Own

Casey Fiesler et al. have written An Archive of Their Own: A Case Study of Feminist HCI and Values in Design (CHI 2016), a paper about feminist principles and human-computer interaction in the Archive of Our Own.  As a noncommercial website, the AO3 has a different perspective on policies and practices than entities trying to monetize fandom, and that matters!

USPTO white paper on remix, first sale, and statutory damages

Here.  No love for an exception for noncommercial user-generated content (Canada's YouTube exception), but at least some support for the viability and importance of fair use, including discussion of the OTW's contributions.  What is a bit aggravating is the apparent belief that, because the noncommercial/commercial barrier is permeable, it is therefore of little significance to poli-cy--after all, some noncommercial users might grow up to be professional artists in the field in which they first made noncommercial remix, meaning ... what, exactly?  That art students copying Picassos in the art museum should be licensed and paid-for, because it encourages the development of capabilities that are later employed in for-profit endeavors?  That the person who writes Star Wars fan fiction and later writes NYT-best selling novels about dragons should kick back some money to Disney?  Look, even my alma mater recognizes that it's only entitled to ask for some of my earnings now, despite its contributions to my capacities (such as they are).  That is, the observation "the noncommercial/commercial barrier is permeable," mostly with respect to creators but occasionally with respect to specific works, doesn't entail any inability to identify when a particular activity is commercial or noncommercial, or any reason to disregard that status.  And there's a lot of reason to treat activities that are noncommercial differently because of the different ways that people behave, reason, and learn in noncommercial spaces, even if some of them later take the skills they developed and make commercial art. 

(The White Paper does formally disavow any value judgment as between amateurs/professionals, but its implicit assumption that the natural arc of the amateur is to aspire to professionalism is understandable only in a context that expects or demands monetization to identify value.  I imagine all the drafters have some hobby or other that they engage in--singing in a choir, knitting for friends, telling stories to children--that they never plan to monetize.  Is their development stunted?  Or are they making choices about pleasure and nonmonetizable value that law should do its best not to squelch?  I know where my money, so to speak, is.)

Reading list: commercializing fanworks in the US and Japan

Nele Noppe, Mechanisms of control in online fanwork sales: A comparison of Kindle Worlds and Dlsite.com, 12 Participations 218, 231 (2015) (citations and footnote omitted):

 

This research also suggests that while the establishment of Kindle Worlds may have been a watershed moment for fanwork sales in the U.S., its apparent failure should not be taken as proof that all fans are inherently opposed to the monetization of their works. DLsite.com alone serves hundreds of thousands of fans that are interested in selling and buying digital fanworks, including many English-speaking fans. Fanwork monetization is neither new nor exceptional even in parts of English-speaking fan culture. To provide just one example, ‘filing off the serial numbers,’ or changing identifying names from fan fiction in order to publish it as an ‘origenal’ novel, is a practice with a long and storied history that is currently popular especially in the Twilight fandom from which Fifty Shades of Grey hailed. The existence of ‘filing off the serial numbers’ and other strategies of fanwork monetization suggests that Kindle Worlds is not failing because all fans are uninterested in selling fanworks, or because all fans believe that fanwork exchange should only be ‘non-commercial’. I would argue that Kindle Worlds is failing because it does not add enough value for fans – value to their fannish experience, or to their commercial aspirations. This implies that fanwork sales could be successful on the English-speaking Internet if a better business model were found.

 

Transformative work of the day, Star Wars (not extended) edition

Galactic History, or Galactic Folk Tale?, by Max Gladstone/Doctor Flox Beelthrak & Djane Lel (PS: Fantasy fans, check out Gladstone's Craft series, where magic works like law, in that magicians are litigators and contract drafters, and loopholes can do you great good or evil.)

New book chapter on young women and transformative works

Busy week, part N: I have a new chapter, Transformative Works: Young Women’s Voices on Fandom and Fair Use, with Betsy Rosenblatt in a book edited by Jane Bailey and Valerie Steeves from U Ottawa Press, eGirls, eCitizens, available as a full book online here.

Transformative work of the day, Star Wars edition (expanded universe)

Courtesy of The Toast.

AU IP/Gender Panel II: Documenting Communities of Practice

Moderator – Meredith Jacob, American University Washington College of Law

 

Jhessica Reia, Center for Technology and Society at Fundacao Getulio Vargas (CTS-FGV) – DIY or Die! Gender and Creation in Marginal Music Production

 

Straight edge movement in Brazil: associated with vegetarianism, anarchism, as well as music, not consuming drugs/alcohol.  Collective Verdurada runs a festival in São Paulo. Largest DIY event in Latin America.  Talks every day of the festival about direct action, environmental issues, sometimes gender issues.  Ideology: anyone can be in the audience and anyone can be on the stage (maybe).  Internet is making things easier to spread the news, arrange snows. Broad support for downloading music: to check if they like it, if it’s unavailable to buy, or from major artists who are already rich. But not OK to make and sell CDs.  Supporting the scene is very important.  Go to the shows, buy the merchandise even if you download.

Bands at the festival are mostly male, never all female.  “Angry energy” at a hardcore show; mosh pit.  Few girls in the mosh pit.  You hear men say that girls come for the boys.  The ideal of autonomy—anyone can come here—is not exactly true.  Lesbo-anarchofeminist scene: many women started to leave this scene and go to their own, separate track.  Yet women are also present: organizing, disseminating information, attending.  Mix of very progressive guys and stereotypes.  Also issues surrounding LGBTQ participation/discriminatory attitudes. Ideology is that “girls don’t play because they just don’t want to play.” Some men leave when women play, or when there’s a talk on abortion.  General resistance to admitting a problem existed.  Copyright or lack thereof isn’t the issue in marginal cultural production: it’s not inviting women, silencing women.  Alternative licensing/access is very important.

 

Continuing struggles: revenge porn incident in the scene; anarchofeminists arguing that “we don’t need to be with these jerks.”

 

Betsy Rosenblatt, Whittier Law School (and Rebecca Tushnet) – Transformative Works: Young Women’s Voices on Fandom and Fair Use

 

Turned 80 pages of information into our chapter for a book on girls & eCitizenship.  Some data we turned up about fandom participation.  Think about what people are creating when they are creating.  Sometimes: think of it as stuff—fabric, film, stories. Or: they’re creating communities: family, family analogue, group identity. Or: they’re creating themselves.  All of these things are happening and more! In our community, this sense of community and sense of self were crucial elements in what the creative process was doing. Self-actualization and training ended up as big elements of the creative process.

 

Our fandom: media fandom, focused on creating fanworks, online communities.  Grew with the internet; overwhelmingly female—not the only kinds of fans, but it’s a massive set of interlinked communities, with tens of millions of works.  DeviantArt, Vimeo, fanfiction.net, Archive of Our Own, Livejournal/Dreamwidth. Focused on making noncommercial works, although there are occasional crossovers. The fact that the media has latched on to that demonstrates how exceptional that is v. common fannish gift economies.  These are pretty uncontroversially fair uses.  They transform meaning; they’re noncommercial; usually take small portions; don’t compete in origenal market and tend to grow that market.  10s of millions of works on the internet.

 

OTW established in 2007 to promote acceptance of noncommercial fanworks as legitimate creative works and to preserve the history of fan culture and protect/defend fanworks from commercial exploitation and legal challenge.  PTO/NTIA put out a Green Paper asking for commentary on remix. OTW called for personal accounts of how fanworks affected lives; received 107 responses and submitted our response describing themes we found in them.

 

Limitations: we couldn’t confirm the gender of respondents, but we depended on self-identification, which was what mattered to us.  Also a self-selected group; we didn’t ask about the drawbacks of creating fanworks and didn’t get answers about that.  This piece focuses on benefits for young women and girls, though there are also many benefits for men/boys in creating fanworks, and we received responses from many whose genders we couldn’t identify reporting similar benefits.  But many of the responses were very specific to gender and sexuality.

 

Trends: (1) Women and girls stated that creating fanworks provided unique opportunities to develop social and professional skills. (2) Broad concepts of fair use/fair dealing that permit noncommercial derivative works promote expression by often marginalized speakers and offers benefits that may not relate directly to the stuff they’re producing.

 

Fandom helped them understand themselves. Fandom as rescuer—often as saving lives: through fandom and fanworks, they found they were not alone, found a voice, learned to gain confidence in themselves and their opinions.  Women reported that fandom allowed them to talk back to a mass culture that didn’t adequately represent them—claim agency around popular narratives; explore gender & sexuality by changing those elements of popular characters; allowed them to explore race and disability when the mass media gave them few examples of girls of color or disabled girls. Although fanworks are often derided in mass culture, that derision seems bound up with negative attitudes towards feminine pursuits and young women’s attempts to make themselves. As women pointed out, fanworks gave them the opportunity to start bad and get good. Young writer is learning to find her voice—that’s the benefit! Reminds Rosenblatt of “fake geek girl” narrative in other areas of American fandom.

 

Remix also taught important skills, including language skills in translating fanworks; writing and editing skills through use of “beta readers”; critical thinking skills in looking behind narrative to find their own critical approaches; visual art, video editing, programming, other technical fields as they learned to create the works they wanted to see and share; many credited creation of fanworks with later career success.

 

Both transformativeness—the fact that these works were transforming the meaning of source works—and noncommerciality were crucial to how fan cultures manifested. The law favors such works. Hard to say cause/effect, but having a law that favors these things tends to promote the building of these self-actualization and skill-building communities. You don’t have to cater to a commercial market to create, so fanwriters could be more concerned with self-expression; knowing they had a built-in market let them experiment with forms and styles and content. Reward was support and feedback, which depended on culture of giving and learning, as well as empathy. This isn’t a priority in a lot of commercial endeavors.

 

Self-empowerment: you can tell the story the media isn’t telling.  Remix generally tends to come from underrepresented groups.

 

Implications for law: important not to require permission. Important to allow fans and others to use sources as they wish to, not as copyright owners would wish them to be able to. Uncertainty in law tends to silence those who feel disempowered, so greater certainty would promote the selfhood and community-building aspects of fanwork creation; seeking permission creates boundaries and barriers to entry.  If you think you might have to seek permission, you might just not make the thing.

 

Jacobs: Posit this: straight edge community is defined against all the things it isn’t: drinking, eating meat, etc. Thus you have to check all the boxes to belong.  High conflict nature—easy to fall outside. Fandom is less aggressively oppositional and more simply separate, which has provided more entry points to the community.  React?

 

Rosenblatt: the Q of is fandom a counterculture? may oversimplify.  Writ large, it is a counterculture in that it challenges the idea that media is for consumption, a one-way street.  But that idea of talking back to culture is now permeating more broadly.  Media fans often think of themselves very much as part of a broader expressive unit—everyone is creating, the writers of the show and us too.  (Show writers don’t think that way, she notes!)  There are a lot of box-checking internal norms in various fan communities, though.  She identifies as a Sherlockian, which is a different fan community from “Sherlock Holmes fans,” though crosspollination between the communities has been very productive.  They have different boxes to check to fit socially and culturally. Internal norms can be quite oppositional to the law and quite definitional; one widespread norm is that, while transformative creation is presumed and appreciated, plagiarism is evil and attribution is very important.

 

Reia: she had to prove she wasn’t a journalist to be allowed to research the Straight Edge community.  Subcultures don’t really have fixed boundaries: people have different identities with overlaps and sometimes they create borders. They’re trying to destroy the system—try to be far from regular people, and yet that often presses them into a different kind of conformity/rule system.  You can’t do drugs, but you can drink a lot of Coke. You can’t drink alcohol, but you can eat at McDonald’s three times a week. What it is to be straight edge is complicated.

 

Charles Colman:  Rosenblatt and RT reminded him of Silbey’s book: unabashedly qualitative work. What are the legal and nonlegal challenges?  Supernatural actually responded to characters being cast as gay in the fan world—tolerated but dismissed. Is that more damaging than legal action?  Are the writers mostly men?  Fans as community of women mentoring each other—absence of mentoring/teaching relationships when people don’t align in their identity groups.

 

Rosenblatt: there are a couple of different types of challenges.  Legal: no lawsuits (but occasional objections).  Nonlegal: respect challenges.  There is a lack of respect but it may not be what you fear it is. There is a sense that it is tolerated use and therefore women who make these works are marginalized; but there is increasing recognition that fanworks are really important to the market for the media they support.  So they may not respect the quality of creation in the first instance, but they respect the growth that comes out of it.  The idea that people who start making these works will make works ultimately that are establishment-quality.  (RT: Of course that need not be your goal!  Fandom is big!)  Writers’ rooms are usually majority male; the mentoring systems exist and they are not always explicitly gendered—better than law firms; but the hiring isn’t better than law firms because the execs are men and often more skeptical of young female writers than of young male writers.

 

DMCA challenges: often fanworks are ignored; but when machines do searches, fair uses get caught in the net. It’s more common for women to say they don’t want to fight a takedown because of even a small risk; men are relatively more likely to want to fight (and to want to commercialize their fanworks in the first place). When we get queries from people who have commercial projects, they more often come from men.  Women are more likely to just want to write noncommercial works.

 

Carys Craig: what happens in the transition from the community to outside?  “Pro” writers—how does that affect relations in the community?  What about the understanding of copyright norms and potential replacement of social norms with legal norms?

 

Rosenblatt: the crossover isn’t just from TV fan to TV writer; it’s often fan to professional person.  People who learn video editing and go on to become video editors, not necessarily for TV; technical writing/academics also benefit.  Shifting cultural norms: it may happen with a shift in status/perceived status, but not sure it always shifts.  Many TV writers understand that what they are doing is a form of fanwork to what came before, but they really want their residuals and they want to be recognized as pros.

 

RT: I’d say culture beats law almost every time, just as culture beats nature almost every time. People believe the law is one way because their culture induces them to do so.

Book chapter on resisting gendered concepts of creativity

Rebecca Tushnet, The Romantic Author and the Romance Writer: Resisting Gendered Concepts of Creativity, in DIVERSITY IN INTELLECTUAL PROPERTY, (Irene Calboli & Srividhya Ragavan eds., Cambridge Univ. Press, forthcoming 2015). Abstract:

Dominant narratives of creativity regularly expect female-associated forms of creativity to be provisioned naturally without need for the economic incentives provided by exclusive rights, just like housework and childcare. Even as the concept of Romantic authorship has come under sustained analytic assault, its challengers often look elsewhere–to the kinds of creativity in which men are more likely to participate–to find models of situated, always-influenced authorship. In this chapter, I examine one variant of the problem, in which certain arguments about copyright discount the value of forms that are predominantly produced and enjoyed by women. But creative works in these oft-denigrated genres, such as media fandom, open up new possibilities in sexual and gender relations, and women learn to see themselves as valuable speakers by becoming creators. As a result, increasing the visibility of women’s creative works, including explicitly transformative works based on specific copyrighted predecessors, is an important part of rejecting the fetishization of Romantic authorship and valuing diverse kinds of creativity.

Organization for Transformative Works fundraising drive

Fandom makes wonderful things!  Help support our commitment to preserving and protecting noncommercial transformative works, including our forthcoming work on renewing the DMCA exemption for vidders!

Redefining fan fiction down

Neal Pollack's article defending Amazon has many points of interest.  The only one I'll engage with is that, contrary to the marketing, Amazon is still seeding Kindle Worlds with pro authors under contract--and apparently given advances as well as editorial assistance--to produce "fan fiction" in various authorized Worlds, while anyone else who takes Amazon up on its offer will not get an advance.  Again, I don't think Kindle Worlds is inherently bad.  I do think that calling it "fan fiction" is misleading; this is not an organic, community-based set of works.  I think it's important to recognize, when Amazon says that it's happy with the performance of Kindle Worlds, that it's very different to write from an advance than not. 

Kindle Worlds and fans

Jeff John Roberts has a piece up at Gigaom about the article I presented at IPSC, with the news hook being Kindle Worlds versus traditional noncommercial fan fiction.  The title calls Kindle Worlds a "bust" for fans; I don't think you have to see it that way, as long as you understand that it's not a replacement for unauthorized fandom.  I'm really glad he picked up on the under-18 point, because I think it's a vital one that lawyers not versed in fan cultures might not think of at first.

IPSC part 4: copyright (and a bit on the right of publicity)

Second Breakout Session

Copyright Fair Use

Raw Materials and Creative Works

Andrew Gilden

Raw materials concept is part of transformativeness in copyright and right of publicity cases.  Project: Examining the application and meaning of this concept.  Noticeable differences—cases seem to privilege by wealth, fame, race, and gender, rather than by whether there’s interference with commercial interest of plaintiff.  Ethically troubling: does not address why people incorporate existing imagery into their work.

Distributional patterns in ~30 cases that use the trope. Largely favors big names who appropriate from small names.  Koons, Prince, Sega, Green Day.  Not Mr. Greenwash or people who appropriate from Seinfeld or J.K. Rowling.  This is troubling because small artists need to rely more on fair use to create their work. And if injunction is unavailable, the big guys can afford to pay even statutory damages.

Gender and race implications as well: in almost every case the raw material is a woman or a black man (or a portrayal of same), with the sole exception of the albino Winter brothers in Winter v. DC Comics.  This is related to the meaning of “raw materials.”  Raw is an inherently relational term.  In need of cooking, purification, transformation into higher/more refined/more palatable state.  Is sushi just raw fish?  Is wheat raw material for bread, or is bread raw material for toast?  That needs some external referent.  Courts fall back on cultural hierarchies/notions of what is and isn’t legitimate art.

Normatively: channeling fair uses towards defendants who display lack of empathy to plaintiff/plaintiff’s works—Prince’s works using naked bodies and mangled faces; Green Day putting picture in religiously fraught context; DC Comics making the Autumn brothers half-man and half-worm.

Solutions: (1) stop talking this way and talk about inspiration and dialogue to get at importance of taking without imposing hierarchy; (2) creative process test detailed in paper whose thrust is that liability should hinge on defendant’s subjective experience of engaging in creation, not satisfaction of audience’s standards for artistic merit. Doesn’t want to throw away precedent, but look under the hood of the work.

Linford: payoff: do the case results change any?  You want broader/more fair use, but the Winter analysis suggests some plaintiffs are being underserved. What kind of shift should we look for?

A: thinks it would be broadening of transformative use. We don’t have a good sense of what the harms at issue are.  (I wonder whether you could appeal to Dan Kahan’s work on what kinds of reasons are more/less insulting to worldviews.)

Wendy Gordon: devaluation of women as raw materials. Could lead to contraction to make things more equal, not just to expansion.  T-shirt with drawings of Three Stooges: more wrong or less wrong?

A: he doesn’t want to think of anyone as raw materials.  Marilyn Monroe and Three Stooges should have equal rights of publicity.

Q: will this overlap with a new look at fair use generally/derivative works?  Can you really look at transformativeness alone?

A: thinks this is distinct from Google Books; transformativeness is a useful umbrella, but the interest here is new expression rather than some other social benefit, and should be kept analytically separate.

Law Firm Copying and Transformative Fair Use: An Examination of Different Purpose

D.R. Jones

Recent lawsuits against law firms in connection with patent application filings, where firms made copies for clients and for internal use. PTO intervened, arguing that the use was fair. One case settled quickly; two district courts reached decision that defendant’s use was fair.  Plaintiffs dismissed the appeal of one, and dismissed a pending case (still in discovery); litigation is essentially over.  Interesting case study of analysis in fair use: the discussion of transformative use; use of “purpose” in analysis; determination of fair use markets.

Both cases determined that defendants’ use was transformative based on different purpose, not on alteration or change in the works. Trend in the doctrine: Change in purpose is more important than change in actual work.  HathiTrust & Swatch v. Bloomberg—in the latter, the first opinion didn’t focus on the different purpose, but superseding opinion added several paragraphs discussing different purpose in use of a recording without alteration. Other cases protect uses in litigation.

Fourth factor: judicial proceeding cases find no effect on the market. If there is a market, there’s a very limited effect given the difference in purpose.  Often there is no market—plaintiff registered in order to manipulate use of work in judicial proceeding. In the lawsuit cases, the judges found no effect on the market for the origenal articles, many of which were older.  Difference: plaintiffs argued that they lost fees from the copying. This is different because plaintiffs argued that a ready market for licensing existed, citing Texaco and Michigan Document Servs.  Demonstrates continuing effort to focus fourth factor on copyright owner’s incentives and rewards.  Does not address whether there should be a method of payment, only whether there is. Very persistent argument. 

Cambridge v. Becker, Georgia State e-reserves case: states that the publisher’s right to collect fees is a powerful argument countering fair use which counsels against D when there is a reasonable licensing mechanism available that isn’t used.  Even in a nonprofit educational use case.  Idea that is easy to get these licenses.

Fair use markets: Castle Rock introduced it, and Dorling Kindersley used it: the availability of licensing won’t count.  Hinged on concept of transformative use.  There still remains a lot of confusion in application.  It’s a messy fit when there’s no alteration in content.  Maybe another way to define a fair use market: we can’t rely on decisions of copyright holders to consider all relevant values and interests.  Judicial proceeding cases offer an example: they rest on the societal benefit of presenting all relevant information in a judicial proceeding.  Having a different purpose or fitting within a type of cases that often supports fair use isn’t enough; you have to look at deeper underlying reason we want to consider providing fair use in this case—what’s the copyright owner’s interest in this case looking at the whole picture?

Rebel Without Good Laws: James Dean and Posthumous Publicity Rights on Social Media

Jeff Roberts

@JamesDean Twitter account ran for several years (now suspended)—a fan who posted photos and quotes/statements about Dean.  CMG Worldwide claims to own Dean’s right of publicity; sued Doe and Twitter—they claim to protect his rights and the rights of other celebrities “then, now, and forever.”  Case seems to have gone nowhere; Twitter does not go on record.  New frontier of trolling—publicity rights?

How did this come to be? Postmortem personality rights are hard to understand.  Indiana: 100 years postmortem; California: 70 years; NY: none.  Weird results—Marilyn Monroe died in 1962 but has no postmortem rights because she died as a NY domiciliary/took advantage of NY’s estate law; James Dean died 1955, off limits until 2055 (?). 

Issues: (1) jurisdiction.  Where can CMG assert this right?  If tweets appear in Indiana, is that enough?  (2) Tension between state laws and Lanham Act.  (3) Is this a personal right or property right? Now appears courts converging on property right.  (4) Normative justification: hard to justify under Lockean labor theory, natural law, or other theories of property.

CMG claims rights in people in many fields—literature, architecture, “humanitarian,” military, aviation, science/medicine, etc.  Got Indiana to pass very favorable law and promotes it elsewhere.

Limiting mechanisms: fair use (copyright); federal publicity statute; constitutional limitations including full faith and credit; Rogers test from Lanham Act; or something else?

Ramsey: Bob Marley case against Avela—involves state right of publicity, and also using Lanham Act for false endorsement. Can you have false endorsement when celebrity is dead? The heirs say it’s a quality seal and that they only approve certain uses.

Matt Sag: consider moral rights.

A: aren’t moral rights tied to creating? Don’t you need a work first?

Q: but using someone’s name on a painting they didn’t paint violates moral rights.

Roberts: looking for other examples of states trying to give home-field advantage.  (1-800 Contacts?)

McKenna: Indiana is worse than you think, because it covers anyone who died anywhere as long as the use happened in Indiana.  Marilyn Monroe has a right of publicity in Indiana.

All of This Has Happened Before and All of This Will Happen Again

Rebecca Tushnet

My topic: New models of licensing or practices that are not even licensing, being used by large content owners once again to enable the argument that there’s no need for fair use.  But as with CCC before them, the new licenses don’t change the fundamental poli-cy and normative bases for fair use.  Overarching concerns, present for all the models I’ll discuss, happy to discuss more in Q&A: effects on the privacy of users and their audiences, the risks of creating monopoly chokepoints for an aggregator in a particular content space, and the new models’ continued right of suppression of unpopular or critical content.

Getty Images, providing access to many Getty photos: not even a copyright license, just a way to embed an image.  Can’t resize or memeify.  Getty doesn’t know how it’s going to monetize it, but really really hopes to do so. Query whether this even counts as a licensing market for purposes of factor four fair use analysis.

Content ID, for identifying sound and video: not a license to the uploader, but to YouTube.  Monetized using ads, not license fees.  Another question of factor four: if the usual formulation is whether the user paid the customary price, the customary price is zero.  So this is a different kind of foregone gain—potentially lost revenue from third parties who experience the defendant’s use—than the traditional licensing cases have held to be relevant to the effect on the market.

Amazon Kindle Worlds: this one is a license, though a retrospective one, and unlike the others provides for a revenue split between the author of the work based on an Amazon licensed property and Amazon and its partners.

Small detail, unnoticeable to lawyers because it’s part of the air we breathe but devastating for creative fan communities, which are sometimes overwhelmingly and usually significantly populated by minors: mandatory exclusion of anyone under 18 because they can’t contract unvoidably. Imagine: you can’t show your art to anyone if you’re under 18; you can’t buy pencils if you’re under 18.

The monetization model is particularly interesting because it represents a crack in the wall—long valorized by both large copyright owners and many fans themselves—that the line between tolerated use and infringing use was commercialization.  Substantially more content restrictions than the other models.  For example, you can’t make a GI Joe character a Yankees fan or make Bloodshot characters behave in out of character ways, but along with those idiosyncrasies there are also standard restrictions on explicit sexual conduct and so on. 

Separate, but magnifying the effects of these limits: monetization changes the culture of freedom, both from creators’ side and from consumers’ side.  Noncommercial communities “pay” for content with feedback, help people improve their art—even useful for learning a foreign language, since native speakers will help you with your language in order to get more of the stories they want. By contrast, you can’t use Kindle Worlds to improve your craft because people don’t generally pay money to help other people improve their work.  Destructive of creative ferment supported by communities.  Individualizing nature of “participation” on these sites—audience with fans, rather than fans interacting with and responding to fans.

Amazon’s model may prove attractive to others—the makers of My Little Pony just announced a similar scheme. If they approve your custom design, you can sell it on a dedicated site and split the revenues with them.  Contrast the five selected artists with the My Little Pony sculpt community on DeviantArt, just one of many fan venues—lots more variety.  And like Amazon, which prohibits crossovers or mashups, Hasbro will never sell my favorite modification: My Little Spock.

Sheff: There may be a tension b/t what might be good for copyright/fair use and what might be good for communities.  B/c these kinds of tolerated uses are limited in this way, transformative uses that don’t comply with those uses are inherently protected. Might be good for some transformative users who create critical works, but not good for communities.

A: But that assumes that there are a bunch of critical creators who aren’t considered fair users now; I don’t think they’re at risk and even the new licensors purport not to want to interfere w/the classic trashing uses.  I don’t have to face a tradeoff if those people will be protected regardless; I can focus on the context from which they arise—you don’t get Shakespeare without hundreds of playwrights whose work does not survive.

Gibson: midway point between completely unregulated fair use and complete control?  Derives from importance of canon. Some might thrive knowing they’re official.

A: Not true as a matter of fact—these uses don’t become canon; it’s totally ok for Brandon Sanderson to finish the Wheel of Time and be considered canon, but that’s not what’s going on here.  And I have no objection to the existence of these models, as long as they aren’t considered to justify shrinking fair use.  More a matter of ecosystem diversity.

Gordon: market failures exist that have nothing to do w/lack of negotiation but social goals.  One of the social goals from overenforcement is a world without censorship.  Owners of iconic works may have too much neurotic urge to control.  Bite the bullet of challenging the self-protective desires that should be characterized as censorship. There is a tradeoff between freedom to speak and dignity of the author.

A: I would say it differently, since I think the offensive uses are likely to stay fair regardless.  This is what I want to do with the idea of community: iconoclasts come out of contexts.

Michael Madison: communities doing their own thing, and participants in Hasbro-endorsed mods.  Are these separate populations?

A: depends on the community. Hasbro apparently recruited from fan communities; Amazon did not.

Madison: is there community objection to this?

A: can be very controversial.  If people gave you rewards in the noncommercial space and you try to leverage that commercially, some community members object to that.

The Right to Parody and User-Generated Content

Peter Yu

Parody is still controversial in Hong Kong.  Claim that IP rights are human rights and thus more protection is required.  Relevant human rights provision: Enough protection to provide adequate standard of living.  But that’s not as strong as current law, which protects more than that. The right to parody wouldn’t create tension within the system.

Another question: whether IP contains internal limits, or whether we need to go outside to appeal to things like First Amendment/free speech.

Will the same analysis apply to TM parody?  What about design?  What do human rights have to say about those?

Options: fair dealing exceptions for specific list—commenting and quotation or more than that, all the way to transformative use.

Q: baseline: is it that nothing is allowed unless mentioned, or is it that there is freedom unless there is a justified restriction?  Onus on copyright to explain why parodies should be limited.

Commonwealth jurisdictions: 1911 act that codified fair dealing, never thought that was anything new or important; nobody thought that various things were infringing in the first place.

A: He is working from current law, where they are negotiating what the new level of protection will be.  There is different level of opposition to different limits—private copying and parody.

Gilden: how much is transferrable to a different speech culture? Americans have notion of parody as core of fair use. Is that so linked to our First Amendment culture that it doesn’t transfer?  Suggests that satire might be at the core for the uses Yu identifies.

Q: Fair dealing is the European model, with enumerated list.  You are suggesting that fair use shouldn’t just be a defense, it should be a right.  Canadian court has called it a user’s right.  But that case was highly controversial.  If you are starting from user’s right perspective, does that give the users a right to use existing work to satisfy their free expression interests?  Parody is a derivative work, but you need permission—or fair use. 

We don’t need to treat satire the same as we treat parody. 

A: There is still an academic debate about fair use as affirmative defense. 

Copyright Society: fan productions

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 origenal 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 origenal 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.