October 19, 2014

mewitti said: Hi! Your blog is amazing, thank you for running it! On the topic of fair use and fanworks--I've read that fair use can ONLY be established in a court of law. But I've also seen a lot of people who claim, "Oh, yeah, my fanart is DEFINITELY fair use", often to justify selling their fanart without licensing. However, they've never actually been to court for an official decision. Is this safe for them to do? Can preemptively claiming fair use run the risk of any kind of fraudulent claims charges?

Thank you so much!

No, Fair Use does not have to be established in a court of law for someone to say that his or her work is protected by Fair Use. Fair Use is a lawful use of copyright, and the courts - and legislature - have set out some very clear lines for what is Fair Use - although, admittedly, the further you get from things that have been dealt with by courts, the more blurred the lines are. 

Commercial sale of a follow-on work doesn’t mean it can’t be Fair Use, but it does impact the analysis one should go through. In other words, if someone is selling their fanworks, it’s not completely and definitely safe to do so, but it might be, so they’re not really preemptively claiming it’s fair use - they may actually reasonably think that it is, and they may be right. 

If someone reasonably thinks that their work meets the criteria required for a showing of Fair Use, then (a) they don’t think their work is infringing on another’s copyright and (b) they’re not engaging in fraud. 

If someone is selling a work that’s copy of something that’s already been produced by the copyrightholder with, say, a Photoshop filter to change the colors, that’s probably not fair use because virtually no creativity was used to create the follow-on work. However, if someone is selling something that is inspired by something that’s protected by copyright, or that parodies it, or that transforms it into something else, then one can say that it’s probably fair use. 

As the court said in the Neil Gaiman v Todd McFarlane case a few years ago, McFarlane’s creations might not have been infringing if he’d done something very different from the original work. 

If defendant really wanted to differentiate the new Hellspawn, why not make him a Portuguese explorer in the 16th century; an officer of the Royal Navy in the 18th century, an idealistic recruit of Simon Bolivar in the 19th century, a companion of Odysseus on his voyages, a Roman gladiator, a younger brother of Emperor Nakamikado in the early 18th century, a Spanish conquistador, an aristocrat in the Qing dynasty, an American Indian warrior or a member of the court of Queen Elizabeth I?  

Fraudulently claiming copyright ownership of something can’t result in a penalty of more than $2,500, but that’s not really what you’re concerned about. Fraud is generally a common-law cause of action, but it only occus when someone has intentionally misrepresented facts to someone else that leads to that party’s detriment. We’re not sure what kind of detriment someone could suffer if they purchased a fanwork that turns out to not be fair use. Nobody has ever - to the best of our knowledge - sued someone who’s purchased a book or picture or DVD or watched a film on YouTube or purchased an iphone case or t-shirt that has fanart on it, so there wouldn’t be a detriment that someone’s experienced. In other words, it might be a false claim, but it wouldn’t be common law fraud. 

October 19, 2014

meilleurcafe said: Hi there! I hope you can point me in the right direction, or offer some opinions. Are comic book super-heroes generally copyrighted? I'm referring to characters like Superman, Batman, the Hulk, etc. - those owned by Marvel or DC. Does it depend on the year they were created? Could they be used in a comic that another artist might draw as for a fiction novel if the comic appeared as part of the book? Thanks very much for your time!

They’re generally protected by copyright, and by trademark rights. It’s possible to copyright a character that’s purely textual (ie just in a book) as long as the character is fully sketched out (metaphorically) and not a stock character or a trope. 

A relatively recent case involving neil-gaiman and Todd McFarlane resulted in a ruling where “visual appearance and details of the characters and their respective histories, biographies, traits, and other personal attributes” all contribute to the copyrightability of the comic book characters. 

Therefore, while they can be used pursuant to fair use in other contexts (news reporting, commentary, criticism (including but not limited to fanart or fanfiction)) or in a de minimus situation, any use would have to be carefully controlled so as not to violate copyright law. 

Also, the designs and names of the characters are also trademarks, which means they have been used by their owners in connection with specific goods and services; any third-party usage would have to be licensed, or fit into the limited gaps given to uses that are noncommercial (which isn’t the same as nonprofit or not for profit; news organizations make money all the time and use others’ trademarks for news reporting, commentary and criticism). 

October 2, 2014
One might think that because Flotsam and Jetsam are entities with their own agency, that their actions are not the responsibility of their employer. We do not know Danish law on this subject, but if the actions took place in the United States (unlikely, as we have no monarchy) then Ursula, as the employer of Flotsam and Jetsam, would face liability for actions they undertook in the furtherance of their employment under the doctrine of respondeat superior. 
In other words, if they tipped over the boat while on the job, or at their employer’s request, then she would be liable for their actions and the repercussions thereof. 
(We also want to note that Ursula engaged in slut-shaming of Ariel after watching Flotsam and Jetsam tip the boat. As Ursula seemed to be alone, she was not engaging in defamation, as someone has to hear the defamatory remarks for it to constitute slander. However, had anyone been there, Ariel could have had a claim against Ursula for defamation.)

One might think that because Flotsam and Jetsam are entities with their own agency, that their actions are not the responsibility of their employer. We do not know Danish law on this subject, but if the actions took place in the United States (unlikely, as we have no monarchy) then Ursula, as the employer of Flotsam and Jetsam, would face liability for actions they undertook in the furtherance of their employment under the doctrine of respondeat superior

In other words, if they tipped over the boat while on the job, or at their employer’s request, then she would be liable for their actions and the repercussions thereof. 

(We also want to note that Ursula engaged in slut-shaming of Ariel after watching Flotsam and Jetsam tip the boat. As Ursula seemed to be alone, she was not engaging in defamation, as someone has to hear the defamatory remarks for it to constitute slander. However, had anyone been there, Ariel could have had a claim against Ursula for defamation.)

(Source: uno-flatu, via morganmuffle)

September 30, 2014

Two of these photos were taken last winter at Disney World; I shared them on Facebook and Twitter and am now sharing them here on tumblr (the third is used pursuant to fair use (commentary)). Even if I took similar photos today, I would share them on Facebook, Twitter and tumblr, and via Instagram and flickr and Snapchat. I’d even do a live vlog from the line to meet Elsa and Anna, or during dinner at Be Our Guest. I would use them in reviews on Yelp or TripAdvisor. 

However, I might not be able to put ads on my YouTube vid or sell the pics to Getty Images, or use them in a travel info app. 

That’s because Disney has changed its policies regarding “prohibited activities”; ”photography, videotaping or recording of any kind except for personal use” is now prohibited by the Walt Disney World Resort and Disneyland Park Rules - although we’re not sure the rules are the same for Disneyland Paris or the Asian Disney parks. 

Some Disney travel/info sites are concerned about what this means for them, and for regular visitors - can a Disney Guest still #showyourDisneyside, or would that fall under a use that is not “personal”? 

It’s complicated - though hopefully not as horrible as Ursula’s contract with Ariel. 

Disney’s own websites are definitely commercial, as a matter of law, so a very strict reading puts the Park Rules and Disney’s Terms of Use out of alignment - but  you can’t read the Rules strictly as they also prohibit feeding animals in the Parks even though there are food-purchase stations in Animal Kingdom’s Affection Station.

With that in mind, we’re going to try for a less-than-strict reading of the new Rules, but it’s a challenge. Neither the Park Rules nor Disney.com’s Terms of Use define “personal use”, although the US courts have addressed the question of personal vs commercial in copyright cases over the years. One concern is whether posting/sharing images via a commercial service like tumblr or Facebook is an Activity that’s Prohibited by Disney.

Cases and legislation discuss what is commercial use, and what is personal use, but those definitions keep changing. The standard at the moment seems to be that use is personal if the individual who owns the content is not personally deriving income from its distribution - but if your noncommercial site links to your ad-supported YouTube channel, or if you use the same Twitter account to promote your own business and share family photos, does that make everything commercial? It shouldn’t, but weird arguments can be made that it would. 

Disney could banish confusion and concern by adding under 140 characters to their Park Rules page. After “The following activities are not allowed” they could add “without permission”. After the line about pics/vids/recordings and personal use, they could add “; if hosted/shared online for personal use, the site/host can be ad-supported, donor/investor-supported or noncommercial." That really covers all the current types of sites where people share content, and makes it clear that people can share their pics publicly anywhere online. It would still allow Disney to restrict people from including their photos in calendars for sale on CafePress or making indie films in the parks with paid actors. If Disney wanted to be very particular, it could say that Guests could upload and share photos, videos and other recordings on any of the Disney Services, which is defined in the Terms of Use. The ToU says that if terms are created for a specific service (like the Parks) those terms, and not the ToU itself, control if there is a conflict; there seems to be a conflict between the Park Rules and the Terms of Use in that the latter allows Disney to grant permissions for certain activities, and the former does not. That makes it even more important that Disney be more specific in its Park rules, as it’s hard to imagine that they want to restrict themselves from granting permission. Disney could write a license into their ToU and incorporate it by reference into the Park Rules, if they wanted to control what they allow others to use but not set up an entire department to review permission requests. 

If the permission-granting is added in, but done by a staff and not a license that applies to everyone who meets the criteria, there’s an issue with bloggers, podcasters, travel agents, news sites and others who want to use their own images and video on their commercial sites or in connection with businesses. That wouldn’t qualify as “personal use” because the person using the photos/videos is (or hopes they will be) getting some sort of renumeration from the photos/videos. Disney could choose who gets permission, and who doesn’t - metaphorically putting some voices into a seashell. 

If you use images or video shot in a Disney parkfor commercial purposes, could you be penalized? The Rules do say that Disney can kick people out and take away their park pass, but if they tried to sue for infringement of their copyright in the architecture the guest may be able to use the Fair Use defense, and where there’s Fair Use, infringement has not occurred. So it’s unclear what - other than the risk of being banned from Disney parks - the penalties could be. 

The thing is, most event, website and park rules don’t define “personal use” in their Terms or Rules. Everyone knows what explicitly commercial uses are - a site that sells prints of photos taken at Disney is making commercial use of the pics. But what about a vlogger who has ads on her YouTube channel and films while at Disney World for Dapper Days? What about a site that focuses on Disney news? Is that commercial or personal? When even the Kickstarter Terms of Use says it’s for “personal, non-commercial” use, do the words “personal” and “commercial” mean anything anymore? 

Nobody wants to be a poor unfortunate soul, unable to Snapchat from Space Mountain or restricted from sharing photos with characters on Facebook. If you’re an ordinary Guest in their parks, you should be able to share anything you photograph, film or record on all your social media accounts, as long as you’re not making any money (or trying to make money) from that account. Under current law, that should be seen as a personal use, and therefore it’s fine by Disney. 

But if you have a commercial site, program, app or product that’s all about - or even just a little bit about - Disney’s parks, you should wish upon a star for Disney to clarify its Rules, so they can give you permission to use your work and provide some guidelines as to what they see as ‘commercial’. Perhaps looking to caselaw involving cars in the 1920s would help, because in our lives, commercial use and noncommercial use have long been blurring

Oh, and when they update the Rules, they might want to add a ban on Guest usage of drones in the Parks, because if it hasn’t happened yet, it will eventually. 

September 29, 2014
Image by Agnes Chang. 
The NYTimes had a piece in yesterday’s Business Section regarding one of the people behind one of the illegal-film/tv download sites that was taken down around the same time as Megaupload.
Most of the article was interesting - it was a personal-focused piece about what it was like running a download site and dealing with the aftermath of going to prison for it - but a few paragraphs felt shoehorned in. The laws involving hosting digital downloads of films that are still in theaters - especially if your team makes a few hundred thousand dollars a year from it - shouldn’t be mashed up with the laws regarding using images from films or shows in other (likely noncommercial) works. The former is generally counterfeiting; the latter is generally Fair Use. 

The article says:  


The pervasive cultural norm, especially among younger people, is that illegal downloading, at least when it involves material from big corporations, is no big deal. Andrés Monroy-Hernández, a social computing researcher at Microsoft Research, studied attitudes around ownership on collaborative, user-generated websites. He found that young Internet users became angry when peers used their works without permission, but didn’t see a problem in lifting images from shows or movies for use in their own work.
“The farther removed you feel from the source,” he said, “the more likely you are to disregard the copyright and the intellectual property.”


A few points: 
1. Wow, talk about loaded language. “Lifting images”? “Young internet users”? It’s like using the term “piracy” (which the article, of course, does) even though courts have held that it’s too loaded and not enlightening. Why is this article even talking about “lifting images” from shows or films? Hana Beshara and her colleagues didn’t go to prison because they were lifting images (screencapping, making memes) - they went to prison because they were making hundreds of thousands of dollars in profit from advertising, donations and fees for access to private boards. What in the world does that have to do with “young internet users” “lifting images”?  

2. Why it “no big deal” to use images or clips from large corporations’ content to use in their own follow-on content? Is it because, as the guy from Microsoft that they quoted says, because those who do it are “farther” from the source, or is it because it’s generally legal under Fair Use to do so? Any of FYC’s regular readers have seen our posts about Fair Use, and know that it’s a lawful use of copyright to use  images, quotations, gifs and bits of text from others’ works. It’s not copyright infringement when it’s done for purposes of news reporting, commentary, criticism and discussion - and that includes use in creative writing, art, vidding, YouTube vlogs, podcasts, memes and posts. 

The story about the website’s founders/admins was interesting. But those who create and share content on “collabroative, user-generated” websites are not doing the same thing as those who rip digital files of movies that are still in theaters and share them online, and it was poor reporting for the Times to write as if they are. 

We’ve asked Mr. Monroy-Hernández to chat with us about his research, and we’ll update the site if we hear from him. 

Image by Agnes Chang. 

The NYTimes had a piece in yesterday’s Business Section regarding one of the people behind one of the illegal-film/tv download sites that was taken down around the same time as Megaupload.

Most of the article was interesting - it was a personal-focused piece about what it was like running a download site and dealing with the aftermath of going to prison for it - but a few paragraphs felt shoehorned in. The laws involving hosting digital downloads of films that are still in theaters - especially if your team makes a few hundred thousand dollars a year from it - shouldn’t be mashed up with the laws regarding using images from films or shows in other (likely noncommercial) works. The former is generally counterfeiting; the latter is generally Fair Use. 
The article says:  

The pervasive cultural norm, especially among younger people, is that illegal downloading, at least when it involves material from big corporations, is no big deal. Andrés Monroy-Hernández, a social computing researcher at Microsoft Research, studied attitudes around ownership on collaborative, user-generated websites. He found that young Internet users became angry when peers used their works without permission, but didn’t see a problem in lifting images from shows or movies for use in their own work.

“The farther removed you feel from the source,” he said, “the more likely you are to disregard the copyright and the intellectual property.”

A few points: 
1. Wow, talk about loaded language. “Lifting images”? “Young internet users”? It’s like using the term “piracy” (which the article, of course, does) even though courts have held that it’s too loaded and not enlightening. Why is this article even talking about “lifting images” from shows or films? Hana Beshara and her colleagues didn’t go to prison because they were lifting images (screencapping, making memes) - they went to prison because they were making hundreds of thousands of dollars in profit from advertising, donations and fees for access to private boards. What in the world does that have to do with “young internet users” “lifting images”?  
2. Why it “no big deal” to use images or clips from large corporations’ content to use in their own follow-on content? Is it because, as the guy from Microsoft that they quoted says, because those who do it are “farther” from the source, or is it because it’s generally legal under Fair Use to do so? Any of FYC’s regular readers have seen our posts about Fair Use, and know that it’s a lawful use of copyright to use  images, quotations, gifs and bits of text from others’ works. It’s not copyright infringement when it’s done for purposes of news reporting, commentary, criticism and discussion - and that includes use in creative writing, art, vidding, YouTube vlogs, podcasts, memes and posts. 
The story about the website’s founders/admins was interesting. But those who create and share content on “collabroative, user-generated” websites are not doing the same thing as those who rip digital files of movies that are still in theaters and share them online, and it was poor reporting for the Times to write as if they are. 
We’ve asked Mr. Monroy-Hernández to chat with us about his research, and we’ll update the site if we hear from him. 

September 26, 2014

Do you want to be a plaintiff? 

A woman is suing Disney over Frozen, claiming that the story of her life was stolen for the film. 

The A.V. Club sums up the alleged similarities between the book and Frozen quite well: 

Look at the facts: Both stories have sisters in them. Both concern characters who struggle to fit in—one because of language barriers, another because of cryokinetic powers that cause her to produce ice at will. Both have talking snowmen pals (Olaf or “Julie,” whatever you want to call them). Both feature salient recipients of reflections that are tacitly and expressly addressed. Both center on the Peruvian earthquake of 1970 in Huaraz, the events of which Frozen turned into the hit song, “Let It Go.” And needless to say, Peru has a bustling cocaine trade, and “snow” is sometimes used as slang for “cocaine.” The evidence is damning.

Sarcasm is strong at The AV Club, which is a subset of The Onion, but factualish and focused on culture and entertainment. Seriously, though, their article points out just how dissimilar the book is from Frozen, and provides more support for the true fact that anyone can sue anyone over anything - and sometimes, just suing will drum up publicity for whatever the Plaintiff wants to promote. 

Back in 2000, a woman named Nancy Stouffer sued J.K. Rowling, claiming that the Harry Potter series was stolen from her “Legend of Rah and the Muggles” - a 2002 summary after the litigation ended notes that Ms. Stouffer was fined $50,000, in part because she fraudulently created documents to match up with claimed publication dates.  B.K. deLong wrote about the suit in 2001 on The Leaky Cauldron, and our heidi8 covered it for years at HarryPotterForGrownUps. There have been other cases through the years where someone complains that their story or their life were taken for a popular film or book or series - and sometimes, there’s truth to that. The copyright issues regarding the film Raging Bull were before the US Supreme Court this year, 

But there have to be substantial similarities within the text for such a suit stemming from a book to be successful - and from what we’ve seen thus far, as the AV Club says, there aren’t any. 

What this case does show is that it’s possible to sue anyone for anything. We know there have been concerns both in the fan community and from the publishing/entertainment industry that if fanfic is “okayed” by The Powers That Be, some fanfic writer will sue a novelist or TV show or film production company because a plot point in some fanfic is similar to something that happens in the commercialized story. We’re not saying that can’t happen - we’re saying that could happen, but (a) it wouldn’t necessarily mean bad PR and horrible problems for the source-story, and (b) it could theoretically happen regardless of whether fanworks are ok with The Powers That Be, because as this Tanikumi lawsuit shows, anyone can sue anyone over anything

The question for lawyers at The Powers That be is whether someone can win such a lawsuit - and to win such a case, the plaintiff generally must show that the defendant had access to, and actually read, the story she’s claiming was infringed upon. That’s why authors and showrunners and movie producers generally avoid reading fanfic while they’re still writing in that ‘verse. 

We’ve looked over the complaint (hosted at E!) and note that as a matter of law, a plaintiff doesn’t have to provide evidence in connection with a complaint - although she did in Exhibit A - and when you’re representing yourself, as Ms. Tanikumi is, the process is relatively cheap - unless and until a judge decides that the suit is baseless and orders the plaintiff to pay the defendant’s attorney’s fees. 

Exhibit A does discuss tropes that are allegedly in Ms. Tanikumi’s book and in the film Frozen, but as we know, copyright infringement does not vest where tropes and ideas are similar between two works - it only comes into play if the actual expression of the ideas is identical. As the US Copyright Office says, “In no case does copyright protection … extend to any idea, concept [or] principle.”  Nobody can own a trope, or hold a copyright in a trope, and Ms. Tanikumi hasn’t provided any allegations that Disney used any sentences or paragraphs from her books in their films. Therefore, she hasn’t, at this stage, actually alleged copyright infringement, even though she’s suing over it. 

Over on Twitter, Torger Kielland, an IP prof at the University of Bergen (Norway) reminded us of the phrase scènes à faire - it means that there are certain scenes or plot points that must be done in certain kinds of stories. Scènes à faire are not copyrightable, and as the 9th Circuit said in 2000, the courts will “not protect a copyrighted work from infringement if the idea underlying the work can be expressed only in one way, lest there be a monopoly on the underlying idea. In such an instance, it is said that the work’s idea and expression “merge.” Under the related doctrine of scenes a faire, courts will not protect a copyrighted work from infringement if the expression embodied in the work necessarily flows from a commonplace idea….

We’ll keep an eye on this lawsuit if it moves through the courts - or at least until the Motion to Dismiss/Motion for Summary Judgment stage. 

September 24, 2014

hawtladiesman said: ((So I assume y'all have seen the iOS8 Wave hoax graphic floating around the interwebs. Was just curious about what the intellectual property implications of that might be, if any. Hopefully it's not a dumb question- I'm only a lowly law student))

It would be an awesome exam fact pattern!

Someone photoshopped an “info page” about how Apple Wave would allow you to charge your iphone in a microwave - YOU CAN’T; IT IS A HOAX. There are theoretical trademark and copyright implications from it: 

1. Trademark dilution  in the form of tarnishment, because it obviously doesn’t work and Apple could argue that using its marks on something that’s inherently destructive is tarnishing. While there’s no specific case-law on point, it would be an interesting argument by analogy. 

It wouldn’t be trademark infringement in the traditional sense in this case because no goods or services are being sold by the Apple Wave creator; however, if a microwave company had done it, to get people to break their microwaves and buy new ones, that would likely be trademark infringement since there’d be a commercial purpose in mind. 

2. Copyright infringement of the Apple 6 design and screen layout, both of which are protected by copyright. If the word PARODY or SPOOF was on the page, this wouldn’t be infringement - it would be Fair Use. But to distribute it with the intent of getting people to do it would not be justifiable in the same way. 

September 24, 2014

diversityinya:

Analysis of the most banned/challenged books in the U.S. shows that diverse books are disproportionately targeted for book challenges and censorship. [Read more at Diversity in YA.]

(via aimmyarrowshigh)

September 23, 2014
Photo agency Mavrix, who were called a “copyright troll” during a lawsuit against Buzzfeed, just lost a lawsuit against LiveJournal over photos posted on OhNoTheyDidnt, one of LiveJournal’s remaining successful communities. ONTD, as it’s commonly known, has nine moderators, including one who is also a LiveJournal employee. 
The issue involves photos that were posted not by ONTD themselves, but by community members, and at least one blog post notes that no explanations were given for why Mavrix didn’t go through the DMCA takedown process, which is what LJ provides for anyone who believes that someone else has infringed on their work on any journal or community on LJ. 
Because Mavrix didn’t go through the DMCA process and instead simply sued LiveJournal for hosting infringement, their claim was thrown out of court; the court said:
LiveJournal … provides an online platform and makes the platform available to members of the public to create their own individual or communal blogs. Before this lawsuit was filed, LiveJournal did not know of the allegedly infringing posts and was not aware of “red flags” of specific infringement; it did not have the right or ability to control such infringing activity; and upon learning of the posts it promptly removed them from the site. Consequently, LiveJournal is entitled to the protection of the Digital Millennium Copyright Act (“DMCA”) safe harbor…
It’s a solid cast for all online communities that allow people to post works on their sites, including twitter, snapchat and tumblr staff, because there haven’t been many DMCA cases that have gone this far through the courts - they usually either settle for some sum, or the content is removed and the plaintiff is thus satisfied. The DMCA process has been around for almost twenty years, and as explained in this case, it obligates the copyright owner to notify a site hosting a claimed infringement about said infrigement; if the site owner/moderator doesn’t take the content down in a reasonable amount of time (even if there are grounds for the content to be found noninfringing) the copyright owner can sue (although they should lose if the use falls under Fair Use, as Fair Use is a lawful use of a copyright)). 
But in this case, Mavrix didn’t notify LJ or ONTD; they just sued. And the court said that they’re not allowed to do that, and therefore, any claim against LJ or ONTD is barred. How does this impact community moderators and site owners on forum-sites, or sites like tumblr (and LJ) where users can submit posts that are approved by a moderator? 
It says that even where a moderator approves the post, any infringement is by the individual who submitted the post.

That all posts had to be approved by a moderator before becoming visible on the site does not disqualify LiveJournal under the “broad” statutory language of the DMCA safe harbor for “infringement … by reason of the storage at the direction of the user.” 

 The court also said that users, not LJ, select the content to be posted on the site, and make the posts themselves. Even though LJ’s site/platform can be used by users to share infringing content, “LiveJournal does not solicit any specific infringing material from its users or edit the content of its users’ posts” and therefore, LJ does not have high levels of control over the posts made on ONTD or other LJ comms.  
LiveJournal has done other sites, platforms, communities, fandomers, news sites and forums a great service by seeing this lawsuit through. Mavrix has a pattern of using a threat that sites owe it hundreds of thousands in damages if one of their users - or even they - post a single photograph owned by one of Mavrix’s paparazzi, and as Gigaom wrote two years ago: 

The legal dilemma is a result of the very big stick that the law gives to copyright owners — the right to seek damages of up to $150,000 for each single infringement. This penalty has its place as a nuclear option of sorts to stop or deter serial infringers. Unfortunately, some image owners are brandishing the nuclear option against everyone — from small blogs to careless interns (who may have been responsible for the BuzzFeed shots)  — without taking any account of the actual harm done by the copyright infringement. Instead of a simple request to take the image down (which most people would comply with), we get a legal train wreck.

We have clients who have dealt with these sorts of claims from agencies that rep paparazzi, and it’s terrifying for small sites and their operators/managers. While photographers do deserve reasonable license fees for their work, the nuclear option gives them an opportunity to threaten to basically bankrupt a site, even one as large as LiveJournal. A single photo taken in a public place that’s no different from what someone can snap on their mobile phone does not, we at FYC believe, ever merit damages in the six figures. 
We’ll keep an eye on what, if anything, happens with this case, and any similar actions by Mavrix or other agencies. Thanks to rivkat for pointing us to the ruling!

Photo agency Mavrix, who were called a “copyright troll” during a lawsuit against Buzzfeed, just lost a lawsuit against LiveJournal over photos posted on OhNoTheyDidnt, one of LiveJournal’s remaining successful communities. ONTD, as it’s commonly known, has nine moderators, including one who is also a LiveJournal employee. 

The issue involves photos that were posted not by ONTD themselves, but by community members, and at least one blog post notes that no explanations were given for why Mavrix didn’t go through the DMCA takedown process, which is what LJ provides for anyone who believes that someone else has infringed on their work on any journal or community on LJ. 

Because Mavrix didn’t go through the DMCA process and instead simply sued LiveJournal for hosting infringement, their claim was thrown out of court; the court said:

LiveJournal … provides an online platform and makes the platform available to members of the public to create their own individual or communal blogs. Before this lawsuit was filed, LiveJournal did not know of the allegedly infringing posts and was not aware of “red flags” of specific infringement; it did not have the right or ability to control such infringing activity; and upon learning of the posts it promptly removed them from the site. Consequently, LiveJournal is entitled to the protection of the Digital Millennium Copyright Act (“DMCA”) safe harbor…

It’s a solid cast for all online communities that allow people to post works on their sites, including twitter, snapchat and tumblr staff, because there haven’t been many DMCA cases that have gone this far through the courts - they usually either settle for some sum, or the content is removed and the plaintiff is thus satisfied. The DMCA process has been around for almost twenty years, and as explained in this case, it obligates the copyright owner to notify a site hosting a claimed infringement about said infrigement; if the site owner/moderator doesn’t take the content down in a reasonable amount of time (even if there are grounds for the content to be found noninfringing) the copyright owner can sue (although they should lose if the use falls under Fair Use, as Fair Use is a lawful use of a copyright)). 

But in this case, Mavrix didn’t notify LJ or ONTD; they just sued. And the court said that they’re not allowed to do that, and therefore, any claim against LJ or ONTD is barred. How does this impact community moderators and site owners on forum-sites, or sites like tumblr (and LJ) where users can submit posts that are approved by a moderator? 

It says that even where a moderator approves the post, any infringement is by the individual who submitted the post.

That all posts had to be approved by a moderator before becoming visible on the site does not disqualify LiveJournal under the “broad” statutory language of the DMCA safe harbor for “infringement … by reason of the storage at the direction of the user.” 

 The court also said that users, not LJ, select the content to be posted on the site, and make the posts themselves. Even though LJ’s site/platform can be used by users to share infringing content, “LiveJournal does not solicit any specific infringing material from its users or edit the content of its users’ posts” and therefore, LJ does not have high levels of control over the posts made on ONTD or other LJ comms.  

LiveJournal has done other sites, platforms, communities, fandomers, news sites and forums a great service by seeing this lawsuit through. Mavrix has a pattern of using a threat that sites owe it hundreds of thousands in damages if one of their users - or even they - post a single photograph owned by one of Mavrix’s paparazzi, and as Gigaom wrote two years ago: 

The legal dilemma is a result of the very big stick that the law gives to copyright owners — the right to seek damages of up to $150,000 for each single infringement. This penalty has its place as a nuclear option of sorts to stop or deter serial infringers. Unfortunately, some image owners are brandishing the nuclear option against everyone — from small blogs to careless interns (who may have been responsible for the BuzzFeed shots) — without taking any account of the actual harm done by the copyright infringement. Instead of a simple request to take the image down (which most people would comply with), we get a legal train wreck.

We have clients who have dealt with these sorts of claims from agencies that rep paparazzi, and it’s terrifying for small sites and their operators/managers. While photographers do deserve reasonable license fees for their work, the nuclear option gives them an opportunity to threaten to basically bankrupt a site, even one as large as LiveJournal. A single photo taken in a public place that’s no different from what someone can snap on their mobile phone does not, we at FYC believe, ever merit damages in the six figures. 

We’ll keep an eye on what, if anything, happens with this case, and any similar actions by Mavrix or other agencies. Thanks to rivkat for pointing us to the ruling!

September 23, 2014

Yesterday, we reblogged someone’s post where she was responding to a personal Ask regarding her selling ebooks of her Les Miserables -inspired fanfic, and we learned overnight that the OP (not the anon who asked a horrible question) was upset that people were reblogging her response, so as of this morning, we’re taking down our reblog, because she’s asked for people to stop reblogging it. 

However, we feel that the Anon’s question and various responses to it cover important legal topics relating to public domain works and fanfic, so we’re reposting those below, along with an update inspired by the image above. 

cesperanza:

astolat:

cassandrexx:

"The writer as a writer has but one heir - the public domain." - Victor Hugo

If you honestly think that Hugo, who wrote about Fantine with so much compassion, would object to a woman living in poverty doing whatever she damn well has to do to support herself, I happen to have this convenient Brick to bash you over the head with.

Er. Wait. What? I read this whole thing sighing, and then got to the end. Is this fucking anon SERIOUSLY writing about LES MIS fanfic? The Les Miserables that was written in 1862 and has been out of copyright for a million years? The Les Miserables that THE PEOPLE WHO WROTE THE MUSICAL used and took LOADS of people’s money for? That Les Miserables? 

You can self-publish your Les Mis fanfic ON AMAZON (or the less problematic ebook retailer of your choice) at a 70% royalty and for that matter sell the movie rights if you want to, it is 100000% yours and that is neither immoral nor unethical.

In fact, you can take the ENTIRE TEXT of Les Mis, format it, slap a cover of your own design on it, turn it into an ebook, and publish it on Amazon. FOR PEOPLE TO PAY YOU CASH MONEY. YES THAT IS LEGAL AND TOTALLY OKAY. 

Writing stories with someone else’s characters IS NOT IMMORAL. Writing stories with someone else’s characters that are out of copyright IS NOT EVEN A COPYRIGHT VIOLATION, that is WHAT PUBLIC DOMAIN MEANS. It means after the copyright period is over, FAIR GAME FOR ANYBODY. 

HOLY FLYING SPAGHETTI MONSTER what the hell *weeping in corner*

Not illegal, not immoral, and not even out of character. :D 

Reblogging because astolat, cassandrexx@ and cesperanza speak the truth. 

As attorneys with a focus on intellectual property, we think it’s very problematic that anyone would say that it’s “disgusting and unfair” to take public domain characters and make money off of them. 

It’s ethical - and has been since before the time of Shakespeare, who wrote of real people (yes, Shakespeare wrote RPF and arguably RPS) as well as others’ fictional characters. It was part of the culture of Greek playwrights, it’s why the story of Mulan spread far and wide, and it’s why the stories in Grimm’s Fairy Tales and 1001 Nights are still told today. It’s why we, as a culture, have most everything Disney, Phantom of the Opera, Wicked (the book and the play), Shakespeare In Love (the movie and the play) and yes, every version of Les Miserables that was not the billion-word novel by Victor Hugo - including some sequels in 1995 and 2001. 

It’s the 2001 sequel we’re thinking about today, because the case that was filed by a descendent of Victor Hugo’s explains exactly why anyone can use the characters and/or story from Les Miserables in any way they want. Sociétié Plon et autres v. Pierre Hugo et autres, 04-15.543 Arrêt n° 125 (Jan. 30, 2007). While there is obviously no copyright left in any descendent of Hugo’s, his great-great-grandson claimed that said descendants still had moral rights (droit moral) in the characters Hugo created. 

Pierre Hugo said much what the Anon said: 

"I don’t mind adaptations and many are very good but this book is not an adaptation. I have read it and it is not badly written but the publishers used Victor Hugo’s name and the title Les Miserables as a commercial operation … It was nothing to do with literature, they were just trying to make money."

The French court said that since the copyright in the work had long ago expired, while an adaptation or sequel might impact Hugo’s moral rights, because the term of copyright had expired, that was immaterial. It didn’t matter. 

And the court also noted as cassandrexx did that Hugo was not opposed to adaptations of his work. 

In other words, if something is in the public domain, the original creator’s moral rights have expired too, and anyone can adapt it, transform it, film it, rewrite it, make an Emmy-winning YouTube video series based on it, translate it, abridge it, slap a shiny cover on it, and after doing any or all of the above and more, one can sell it. 

ETA: The image above is the cover of A Little In Love, a book that will be published in October, 2014 in the UK by Chicken House books, written by Whitbread prize-winning author Susan Fletcher. The info page says the obvious - it’s “Inspired by the Victor Hugo literary classic” and also says that it’s inspired by “the bestselling musical and multi award-winning movie,Les Miserables.” The title comes from Eponine’s dying words in the book, “And then, do you know, Monsieur Marius, I believe I was a little in love with you.” 

It’s a published novel, by an award-winning author - and it’s a coincidence that it was tweeted today, because it illustrates how wrong and malicious the Anon was to a fandom writer yesterday. Fletcher is taking money for writing fanfiction using characters that are not hers. And that’s completely okay, because the characters and story are in the public domain. Nobody owns the copyright in them. There should be no ethical issue for an author to get paid for writing a story that is based on public domain characters. As the 8th Circuit in the US said earlier this year: 

When a story falls into the public domain, story elements—including characters covered by the expired copyright—become fair game for follow-on authors.

Follow-on authors - aka fanfic writers - are allowed to do anything they wish with a story that has fallen into the public domain, They can use story elements including characters. Storytelling just works that way.

We are sure anons who want to bitch about something and be cruel for no reason will not take this as a reason to stop attacking people for doing something legal and ethical under all modern entertainment/publishing industry standards, but we really hope they do.