Fan Works, Copyright and Fair Use

[Matthew Raymond]

Not to be all Maurice about it, but I really think that particular tangent needs a new thread.

Very little to do with the specific James Cawley/New Voyages/Studio Tour situation.

I couldn't agree more. Presto!

Nope! Unofficial guidelines had been provided through email exchange for some years (and basically boiled down to "don't profit by it").

Which would be largely unverifiable, difficult to find even if the subject of the email made it public, and potentially contradictory and outdated, given that those would be separate emails spread out over long periods of time. I don't know how anyone would even Google that. Your average fan outside this board is not going to know any of that.

All those things are skills and opportunities that can be gained from making actual original works. If those things you mention are your goal then a fan film is not the way to do it, as such products are inherently derivative and limit creatively. Fan films are a celebration of an existing franchise, not a feature on your resume.

You frame this as an exclusionary either-or situation where none exists.

Your skills argument is nonsense. Most movies are based on books or preexisting franchises these days. Your basic premise is an unintentional indictment of the film industry as a whole.

With regard to creativity, fans often create their own planets, races, ships, et cetera, so there's nothing preventing them from being creative. (In high school, I even worked on creating my own alien language.) In fact, I've been told on this board multiple times that limitations often lead to greater creativity. Could not the limitations of a preexisting franchise spur creativity in a similar manner?

As for resumes, if someone has done a fan film, and they're going for their first job in film, it would be illogical to leave the fan film off their resumes, regardless of how personally distasteful you might find that.

Let me turn that around again - who are you making the fan film for, and why?

The motives of fan film makers should not have to meet with your personal approval.

It's copyright protection, that's how the law works. You may be confusing it with trademark law, perhaps?

Seeing as I'm advocating changes to copyright fair use as a remedy, I fail to see your point. Obviously, if I didn't know how current copyright works, I wouldn't propose changing it.

I didn't understand your comment about confusing copyright with trademark at all. I don't see how you could reach that conclusion.

Confusing, isn't it?

You're conflating two different subjects of confusion, but for the sake of efficiency, I'll concede that allowing fan films to use the trademarked name of a franchise in their titles is confusing, and I agree that it should be prohibited.

Sure. I'm not sure what your point is. My point is: the problem for copyright owners allowing fan works is when those fan works start getting confused with the real thing--for a lack of a better term.

A new fair use provision could take that into account, by requiring the work to identify itself as a fan work and including a disclaimer that the franchise owners are not responsible for the content.

Oh. Lord. Are you being this fucking pedantic? You don't think "look" includes specific designs? Costumes?

"Look and feel" includes things well beyond those specific designs. It's overbroad. You could argue that The Orville has the "look and feel" of Star Trek, or even Galaxy Quest. My point was that you were casting your rhetorical net too wide.

Oh. LORD. You ARE being this fucking pedantic.

It's another example of your tendency to rob situations of nuance for rhetorical effect. By saying that fan films have "identical" content, you imply acts of direct copying rather than the creation of derivative works, knowing that most people take a dimmer view of the former than the latter.

Then, you agree with my point. Your carving out idea would make an already challenging aspect of copyright, what is fair use, even more complicated, by adding yet another aspect.

You don't have a point. Law should not be dictated by

Um. I didn't ask for examples of fan backlash in general. I asked for fan backlash after a copyright holder stopped an infringer.

Touche. Prince dropped a lawsuit against 22 "bootleggers" on Facebook after a fan backlash in 2014.

Why do you assume only Media Corporations disagree with your idea of a carve out for fan works?

I don't. I was responding to your claims that I couldn't both advocate for copyright changes and create something new "Because CBS and Paramount have said so".

I'm not calling fan works trivial. I called your ask for a carve out for fan works a trivial ask.

I think your distinction is what's trivial.

I’ve been giving it some more thought, and in order to exit this long conversation, I’ll say why I don’t think their should be a carve out for fam films: they provide very little cultural value.

That's a subjective criteria that has never been used in fair use arguments.

Those that have been carved out for fair use offer either education or critique of the work. Whereas fan films and fanfic seem to just want to recreate or bounce in a fun house mirror of the work, endlessly doing the same thing over and over. And ultimately, the argument, as presented here for why to have a carve out is “because I want it.”

Nothing prevents fan works from being critiques or being educational. Again, your personal views on the quality or nature of the fan works you've seen aren't relevant. Rights should not be determined by how well someone might use them. For instance, as citizens we have the right to vote, but a significant portion of the population doesn't. If we had to justify rights by their worst applications, we'd like in a totalitarian police state.

And no, the argument doesn't boil down to "because I want it". Copyright is supposed to be balanced against free expression, both of which are enshrined in the US Constitution. If copyright becomes an undue burden on free expression, then it must necessarily be adjusted.

And frankly, that’s a pretty childish and entitled argument. It’s simply not yours to take. Fair use at least offers something for the culture at large. Fan films offer more of the same.

This isn’t to slag on those who make and enjoy fan films. Have fun with them. Have fun making them. But, I don’t see any reason to carve out an expection for them in copyright.

Your position is a paradox. You state that these works have value both to the creators and the consumers of the their content, but you dismiss protections for them because they have no value to society, which is made up of these very people. If fan films were really so worthless, your reasoning should lead you to be opposed to this very forum's existence.

Copyright is an important tool for creators. And in this day and age, it’s incredibly easy to take things that don’t belong to you, why further weaken copyright?

"Further weaken"? Have you not been paying attention? Copyright law is stronger now than at any other point in it's history: Automatic copyright without a copyright notice, retroactive copyright extensions out to 95 years, DMCA takedowns, legal protections for DRM, et cetera. You conflate the strength of the law with ease of enforcement. Had the original Star Trek been copyrighted for the original term of 40 years, Star Trek Continues would be based on content in the public domain. One could argue that a fair use provision has been made necessary because popular culture takes increasing longer the enter the public domain.

Indeed. The pain this causes me is the fact that creators do not get respected because...corporations, or something. And yet, there isn't enough protections right now for creators to prevent digital piracy.

Withholding fair use for non-commercial fan works does nothing to stop piracy or commercial exploitation of copyrights.

I get this is a controversial topic, but if you account for piracy the copyright holders are well within their rights to protect their [...] ability to profit from it.

I don't think that there's any evidence that clearly marked, non-commercial fan works have any kind of negative financial impact on their respective franchises.

Matthew let me ask you a question. How would you in your mind carve out this very narrow fair rights exception without allowing people like peters to take advantage of it keeping in mind he already argued fair use unsuccessfully with current fair use laws.

You always have people who you give an inch and they take a mile.

So how would you make it work?

I appreciate your questions.

Let me first clarify that I don't think laws should be judged on whether they might encourage the passages of more laws in the future. If a bill is significantly detrimental to copyright holders, it is that bill that should be opposed, not previous bills that are reasonable in isolation. If we follow the slippery slope of "they'll take a mile" regarding legislation then, for example, we could oppose things like equal rights for people who are LGBTQ because they "may want their own special rights next".

(Xzibit: "Yo dawg, I hear you like slippery slopes, so I put a slippery slope on your slippery slope!")

That said, here are the restrictions I would place on fan works for them to be considered fair use:

1) They must be non-commercial.
2) They must give attribution to the copyrighted work(s) and identify the copyright holder.
3) They must disclaim any affiliation, endorsement or sponsorship with the copyright holder.
4) The work must be reasonably transformative in nature, without substantial taking from the original work. (In other words, this shouldn't be a loop hole for pirates.)

It's my understanding that stating the fact that your film is based on a particular franchise is in itself a violation of trademark, as you are simply conveying a fact. It's only when you use the trademark to identify the film that trademark becomes an issue. So "Star Trek: Whatever" would be a trademark violation, but "Whatever (a Star Trek fan film)" would not be.

 

[fireproof78]

Withholding fair use for non-commercial fan works does nothing to stop piracy or commercial exploitation of copyrights.

It doesn't protect their rights either.

I don't think that there's any evidence that clearly marked, non-commercial fan works have any kind of negative financial impact on their respective franchises.

I don't think there is evidence that is supports the franchise either.

 

[Krandor]

That said, here are the restrictions I would place on fan works for them to be considered fair use:

1) They must be non-commercial.
2) They must give attribution to the copyrighted work(s) and identify the copyright holder.
3) They must disclaim any affiliation, endorsement or sponsorship with the copyright holder.
4) The work must be reasonably transformative in nature, without substantial taking from the original work. (In other words, this shouldn't be a loop hole for pirates.)

Number 1 is way too vague. Axanar could use that to say all their donor store sales and axanar coffee and this and that were all still fine becuase they can produce a napkin that said they made no profit. Do you know how many hollywood blockbusters report no profit? A ton. That would have to be WAY more precise then that to get started. That is what I mean by take a mile... not that somebiody would want another way, but if you say you can do X somebody will try to find a way to make that clause mean they can do a bunch of other stuff not intended.

I'm still of the opinion that fan films should remain copyright violations unless allowed by content holder. The copyright holder should not have to compete with fan films and risk damage to their bottom line.

 

[UssGlenn]

So, the only part of copyright protection that affects fan films is the prohibition on derivative works. I've always been curious what makes something a derivative work. Use of trademarked elements is an easy shortcut, but this protection exists independent of any trademark or lack thereof. The Orville isn't a derivative work of Star Trek but Star Trek Continues is. 50 Shades of Gray is directly inspired by Twilight, but legally isn't a derivative work (mostly because Meyer didn't sue, despite the plagiarism). Star Trek has been trademarked out the wazoo, so it's easy to just avoid those elements, but other properties don't have that easy way out.

 

[Jam3s1701]

Ok sorry to be Debbie Downer! but....

THIS IS NOT GOING TO HAPPEN, the fans can be as chitty chatty as they like but copyright law is the way it is, and no one bar the big studios, unless they sue someone that is and loose, is going to get this or have this changed.

\\//,

 

[Matthew Raymond]

It doesn't protect their rights either.

I think we're misunderstanding each other. I defined a fair use exemption that specifically excludes commercial use and piracy. So copyright law would still apply in those situations.

I don't think there is evidence that is supports the franchise either.

That's something that's hard to prove without confidential sales numbers from all the various franchises. However, I don't see why a revenue-neutral effect is a problem. I would argue that if the Film Academy does really well, that would suggest a positive influence.

Number 1 is way too vague. Axanar could use that to say all their donor store sales and axanar coffee and this and that were all still fine becuase they can produce a napkin that said they made no profit. Do you know how many hollywood blockbusters report no profit? A ton. That would have to be WAY more precise then that to get started. That is what I mean by take a mile... not that somebiody would want another way, but if you say you can do X somebody will try to find a way to make that clause mean they can do a bunch of other stuff not intended.

I welcome any suggestions you have on how to word it to avoid exploitation. I never intended for the law to literally just say "non-commercial". The list is just a set of bullet points, not legal draft language.

I can be pretty flexible on this topic. I just want to avoid an extreme interpretation, such as if you pay someone to sew the uniforms then you're suddenly "commercial"...

I'm still of the opinion that fan films should remain copyright violations unless allowed by content holder. The copyright holder should not have to compete with fan films and risk damage to their bottom line.

That's fair. Personally, I think most examples of this are situations that the provisions I've listed eliminate, but I understand if you disagree.

The Orville isn't a derivative work of Star Trek but Star Trek Continues is. 50 Shades of Gray is directly inspired by Twilight, but legally isn't a derivative work (mostly because Meyer didn't sue, despite the plagiarism).

I have to wonder if the future of fan works is to simply "file off the serial numbers" earlier in the process. If you look at "USS Callister", that was obviously Star Trek inspired and wasn't even a parody. Fans will adapt to the current copyright climate. I'm not sure that's a good thing, but I can't really blame them.

 

[Jedi_Master]

There is something to be said about wasted effort. Theory and speculation is all well and good, but fundamental changes to laws that protect the interests of corporations who collectively employ/enrich millions of people - not to mention hundreds of thousands of private content creators who also benefit from the current law - just so a few thousand people can enjoy some legal protection is simply not going to happen.

 

[fireproof78]

think we're misunderstanding each other. I defined a fair use exemption that specifically excludes commercial use and piracy. So copyright law would still apply in those situations.

We already have that though. So, why is there a need for an exception?

That's something that's hard to prove without confidential sales numbers from all the various franchises. However, I don't see why a revenue-neutral effect is a problem. I would argue that if the Film Academy does really well, that would suggest a positive influence.

How so? As others have stated, it isn't really creating anything "new" or adding to the franchise, expanding the audience, etc. It is satiating a very specific part of an already niche market.

So, what will this change produce that is positive for the copyright holder?

 

[JD]

Are you talking about changing the copyright laws to allow fan creations?
I don't really see where that would be good for the copyright holders. If the copyright laws are loosened to allow fan films, then everyone with even he slightest idea will start pumping out fan films and before you know it they'll end up flooding the market and people would probably not want to pay to watch the real thing if they can just watch thousands of hours of it online for free.

 

[Matthew Raymond]

We already have that though. So, why is there a need for an exception?

I don't understand what you're saying. I've already stated the purpose of the exemption: to protect fan works, of which there are already a massive number.

How so? As others have stated, it isn't really creating anything "new" or adding to the franchise, expanding the audience, etc. It is satiating a very specific part of an already niche market.

I dispute that it's not creating anything new, but I don't think you would have put it in quotes if that was entirely genuine. You seem to be working the argument from both sides. On one side, franchises are unoriginal rehashes. On the other, they're so good that they such all the money away from the copyright holders. Which is it?

As for expanding the audience, that's counter-intuitive. Discovering the franchise leads one to search for fan works, not the other way around, so why would anyone expect it to work that way. That's not even necessarily how it works with spin-offs.

So, what will this change produce that is positive for the copyright holder?

As I've stated, I don't see why it has too. I think it actually does, by sustaining the interest of more invested fans, but this is not a hurdle that other fair use exemptions have to clear, so what makes this one special? In fact, some existing types of fair use may actually hurt a copyright holder's bottom line. A good example would be nearly every review ever made of M. Night Shyamalan's The Last Airbender.

Are you talking about changing the copyright laws to allow fan creations?

In limited circumstances, yes.

I don't really see where that would be good for the copyright holders. If the copyright laws are loosened to allow fan films, then everyone with even he slightest idea will start pumping out fan films and before you know it they'll end up flooding the market and people would probably not want to pay to watch the real thing if they can just watch thousands of hours of it online for free.

For nearly any franchise you can think of, there are already hundreds, or even thousands, of fan fiction stories. Are you suggesting that the respective franchises would have made massive windfall profits on book sales if those fan fiction stories didn't exist? I seriously doubt it.

 

[Jedi_Master]

There is something off-putting when a lover of precision that enjoys correcting even minor grammatical errors makes claims using words like 'massive.'

 

[fireproof78]

I don't understand what you're saying. I've already stated the purpose of the exemption: to protect fan works, of which there are already a massive number.

So, fans can already produce fan works. So, what is the need for the exemption?

I dispute that it's not creating anything new, but I don't think you would have put it in quotes if that was entirely genuine. You seem to be working the argument from both sides. On one side, franchises are unoriginal rehashes. On the other, they're so good that they such all the money away from the copyright holders. Which is it?

As for expanding the audience, that's counter-intuitive. Discovering the franchise leads one to search for fan works, not the other way around, so why would anyone expect it to work that way. That's not even necessarily how it works with spin-offs.

That's not been my experience, but fair enough.

If the copyright holder feels in infringes on their brand recognition and profits then I think they have the right, by law, to protect that.

As I've stated, I don't see why it has too. I think it actually does, by sustaining the interest of more invested fans, but this is not a hurdle that other fair use exemptions have to clear, so what makes this one special? In fact, some existing types of fair use may actually hurt a copyright holder's bottom line. A good example would be nearly every review ever made of M. Night Shyamalan's The Last Airbender.

That's used for education.

What is a fan film educating about?

 

[UssGlenn]

I have to wonder if the future of fan works is to simply "file off the serial numbers" earlier in the process. If you look at "USS Callister", that was obviously Star Trek inspired and wasn't even a parody. Fans will adapt to the current copyright climate. I'm not sure that's a good thing, but I can't really blame them.

That's what Renegades did wasn't it? Legally that's probably the best bet, but the whole point of fan films is to play in your favorite sandbox, not the similar one next to it.

 

[jespah]

I wish I knew what the premise was here. It feels like I walked into the middle of Act 3.

 

[urbandefault]

I wish I knew what the premise was here. It feels like I walked into the middle of Act 3.

It's a long-jump transport from the James Cawley Speaks thread. You really haven't missed much.

 

[CorporalCaptain]

If a copyright owner wants to allow people to make and, under certain conditions, publish fan works (films, fiction, etc.) with their IP, that is their privilege. But there's no public interest in changing copyright law to force IP owners to tolerate the proliferation of fan works.

 

[Krandor]

The problem is if fan films are allowed as a whole in any length or in any continuing series or length you'll have a ton of them start to invade the web often with hundred thousand dollar budgets and professional actors. Then people will just watch those and not the real thing.

The second problem is the crowdfunding and that is why so many people want to make films off established fandoms. If you put up a kickstarter for star trek,star wars, harry potter, etc. a bunch of people will contribute that wouldn't if you created something new. So the lure of using an existing fandom is you can raise more money. But if the fans are giving that money to fan productions they have less to spend on merchendise, etc. from the real property owners and then you get into the nasty business of these fan films then sellling merchendise too even if under the shroud of "perks".

It isn't going to happen and it shouldn't happen.

 

[urbandefault]

The problem is if fan films are allowed as a whole in any length or in any continuing series or length you'll have a ton of them start to invade the web often with hundred thousand dollar budgets and professional actors. Then people will just watch those and not the real thing.

The second problem is the crowdfunding and that is why so many people want to make films off established fandoms. If you put up a kickstarter for star trek,star wars, harry potter, etc. a bunch of people will contribute that wouldn't if you created something new. So the lure of using an existing fandom is you can raise more money. But if the fans are giving that money to fan productions they have less to spend on merchendise, etc. from the real property owners and then you get into the nasty business of these fan films then sellling merchendise too even if under the shroud of "perks".

It isn't going to happen and it shouldn't happen.

Not to mention the fact that the once hypothetical abuse of crowdfunding for a fan film is not so hypothetical any longer.

 

[fireproof78]

If a copyright owner wants to allow people to make and, under certain conditions, publish fan works (films, fiction, etc.) with their IP, that is their privilege. But there's no public interest in changing copyright law to force IP owners to tolerate the proliferation of fan works.

Exactly this. There is also a great possibility of abuse by that latitude.

 

[Maurice]

<looks in>
<glances around>
<exits>