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"That, no later than close of business on October 30, 2006, 11th Hour Art agree in writing to permanently cease and desist from the advertising, promoting, marketing, sale or distribution of any products bearing or referring to Universal Property"

Guess that could be seen as Universal telling me to stop guerilla marketing too. Good job Universal, can't be having a loose cannon like me running around promoting Serenity. Think of the damage that could do.

Good bye guerilla marketing posters too?

Hello Serenity Valley.

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I think some law firms here have fallen out of a tree and missed every clue branch on the way down.
gossi | October 24, 21:17 CET

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How the hell can this happen?

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oohhh our easy goin' nature is gettin' sorely f**kin' tested!

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Originally posted by CABridges:
I think you're confusing Universal's legal arm with the rest of Universal. I'd be surprised if anyone involved at Universal LLLC even knew what the movie was. Their job is to protect the property, not to evaluate the usefulness of fan marketing.

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Originally posted by SimonWho:

As far as I can tell, this is a public declaration that Universal have given up on continuing the franchise.

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Hang on - you've rec'd an E-MAIL demand for retrospective fees .... what legal body makes demands by e-mail? Treat it as a scam claim to extort money and report it to the Police and if you feel like it Universal but make the police your first stop (may be an FBI report would be appropriate in the US)

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good point made by Kane 1 over on the OB...

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Hang on - you've rec'd an E-MAIL demand for retrospective fees .... what legal body makes demands by e-mail? Treat it as a scam claim to extort money and report it to the Police and if you feel like it Universal but make the police your first stop (may be an FBI report would be appropriate in the US)

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...does make you wonder.

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Originally posted by MrT:
good point made by Kane 1 over on the OB...

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Hang on - you've rec'd an E-MAIL demand for retrospective fees .... what legal body makes demands by e-mail? Treat it as a scam claim to extort money and report it to the Police and if you feel like it Universal but make the police your first stop (may be an FBI report would be appropriate in the US)

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...does make you wonder.

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Intellectual Property Law and the Fan - A Primer
[I originally posted a short version of this as a response to [someone at lj] lengthy analysis of a recent Harry Potter fanfic scandal regarding plagrism. For a deeper understanding of that scandal or plagirism go to that post. This one is about how fanfic, icons, vids, screen shot fall under copyright law and the extent to which, if any, they are considered copyright infringement. I updated it to include the Tasini court case, which I can't believe I forgot - it's at the end of the history section. Please note, I altered the section on Real Person Fanfic after doing a bit more research. You actually have less leeway here as opposed to more - due to libel and defamation laws - which do come into play here. Also note that my understanding of libel and defamation laws is fairly simplistic.]

Fandom and Intellectual Property Law…

Fanfic is a foggy area copyright wise, but then so is intellectual property law. People do not agree and US Copyright Law has been changed several times – there’s the 1976 Act, the amended act of 1978, and again in 1988 with the Berne Convention Implementation Act of 1988, the Sonny Bono Copyright Extension Act in 1998 (or Mickey Mouse Protection Act)( http://en.wikipedia.org/wiki/Sonny_Bono_Copyright_Term_Extension_Act, the World Copyright Act), The WIPO Copyright Treaty of 1996, The European Copyright Directive and finally the Digital Millennium Copyright Act of 1998, – which was the most controversial and went through multiple drafts before being signed by the President on October 28,1998.


A Little Bit of History

I remember back in 1996-2000, being on two list-serves, one went to a combo of Archivist and Library Association members around the Globe, but was mostly US based, and one an Intellectual Property Lawyer's list serve - regarding the legalities relating to different types of derivative works.

This was when the internet was just beginning to take off, before live journal existed or we had such things as blogs. Discussion boards were rudimentary and IM Messaging non-existent. The legal minds on the list-serves were worried that the internet would make it easier for people to steal or swipe intellectual property, cut and past links and content, manipulate images, and it would be impossible to track, police or govern. The Internet felt like an the perfect device for intellectual property theft. They were so worried that they kept trying to pass World Copyright Acts regarding the internet and finally managed to get some language into the European Copyright Directive and the US version - Digital Millennium Copyright Act – these were implementations of laws from the World Intellectual Property Organization Copyright Treaty of 1996. The Sonny Bono Copyright Extension is the other law that US put into place to implement the WIPO Copyright Treaty. Doing so, made it possible for the countries who had implemented the treaty to respect US Copyright Law and vice versa. I think I saw four or five versions of the Treaty, the Directive, and the Millennium Act before they were signed into law. And they were not agreed to by all the nations – this is important. (I may be wrong, but I think Germany may have been one of the hold-outs along with, of course, Asia, which posed obvious issues regarding international law.) The test was – where is the ISP address originating from and is the content being distributed on the site originating from that country or did the content originate in another country protected under the World Act and was put on the site without permission? Sounds easy to prove, but it is hard to police and enforce – since the person committing the infringement is protected under his/her country’s laws and jurisdiction. Forcing that country to respect the laws of another country is not as easy as it sounds. The reason the US passed the two laws it did and Europe passed its directive was to ensure they could protect their intellectual property outside their own country – which had not been a huge problem until the internet took off in 1998 and DVD’s provided people with the ability to download and copy huge amounts of content. (See: http://en.wikipedia.org/wiki/WIPO_Copyright_Treaty – for details.)

At the time, the other list-serve I was on, had formed a strong coalition against the Digital Millennium Copyright Act , the WIPO Copyright Treaty, the Sonny Bono Extension, and the European Directive - this coalition was made-up largely of Information professionals, including the American Library Association, the International Association of Archivists, amongst others. Their principal concern was that little clause entitled "FAIR USE". They argued, that if you put braces on the internet, police it too heavily, all in order to protect "property" - you will prevent people from accessing information - or will restrict information to a privileged few. They also argued that you should not restrict creative expression, people borrow from one another. And there is a fine line between "stealing" someone else's work in order to pass it off as one's own and being inspired by that work to create something as a comment on it, an entirely new piece, a criticism, a parody, or even marketing that work to a new audience. The slippery slope argument.

There's one more copyright related event worth mentioning here. New York Times vs. Tasini - is a Supreme Court Case that was brought by freelance writers against the New York Times and other publishers placing content on the database. Tasini claimed that writers were being denied a portion of the royalities for work that they had written for the New York Times. They owned the copyright on that work and the New York Times was selling/posting it without their permission via the internet, depriving them of the ability to resell the work or get additional revenue. The Court found in favor of Tasini and stated that while New York Times was correct in stating the writers were their employees at the time, the freelance writer sold partial rights, not full rights to the Times. Therefore the Times had to pay them royalties for posting on the net and could not do it for free. This case prevented database providers such as Lexis Nexus, my own company, and others from distributing journal and magazine and newspaper articles that were not owned by the publication, but were still owned by the writers. It stated that even though the freelance writer's work was part of the collaborative work or a collection, the writer retained rights in his/her piece under Copyright Law, since the piece could be viewed separately and understood separately from the whole. Tasini is the reason that you have to subscribe to the New York Times Web Site and pay a certain amount to get access to specific authors articles. Now there is a difference between academic journals and news papers and magazines - when an academic sells an article - they will most often sell all rights to the publication or if the publication is associated with their university, it will not only be full rights but also exclusive. Freelance writers for online zines, New York Times, Time Magazine, etc - will only give first time or second time serial rights. They want the ability to republish their piece elsewhere. Tasini changed how many online reference services did business and explains why you still have buy the print version to get access to certain articles. (For the actual opinion, go here: http://supct.law.cornell.edu/supct/html/00-201.ZO.html)

I updated this article to include the Tasini case because it demonstrates how case law interprets copyright statutes and makes a practice that may have seemed legal under the statute, illegal under it.

Why the Heck Should You Believe Me?

In 1994, I graduated from Law School in the US. I passed the Bar in Kansas that same year. I also took a course in Intellectual Property Law taught by an expert in the field. While I have chosen not to practice as an attorney, I have worked in copyright law and with several copyright and intellectual property attorneys.

From 1996-2002 when internet copyright law was still being figured out and most of the acts regarding it were passed or discussed, I worked for a library reference publishing company and part of my job was to police the internet for copyright infringements, as well as informing the company of ways to protect the content that it placed on an online database accessible to the public. I conducted legal research, wrote a copyright policy regarding content distribution, explained copyright law to customers, researched and registered trademarks, and acquired rights to journal, periodical, newspaper, and textbook content.

One of my duties was to figure out how to ensure people did not cut and past entire articles and distribute them in list-serves, costing the author of the article revenue? And convince the publishers that I acquired content from that people could not do this using the company’s databases. All sorts of methods were created - from electronic watermarks, to devices that made it impossible for people to cut and past or so they hoped. In fact, the Digital Millennium Copyright Law specifically states that it is a crime for people to hack around devices used by software publishers to keep their programs from being copied and prohibits the production, marketing or sales of a product or service designed to circumvent these protections. In 2000, the Act restricted the import, distribution and sale of analog video cassette recorders and camcorders that don’t have a certain type of copyright proof technology.(*Patent, Copyright and Trademark by Stephen Elias, Nolo Books, 3rd Edition,1999 with updates by Nolo.com) Web sites created PDF read only documents that can’t be copied or cut from. Special watermarks appear much like what you might find on a dollar bill indicating the original owner. Firms sprouted up over night on the net selling all sorts of copyright protection software.

"The Blurry World of Fan-fiction & Copyright Law: Is it really an infringement?"

When I first discovered fan-fiction in 2001 - I had a series of discussions about it at work with a colleague, who had a background in subsidiary rights, foreign rights and licensing but not a law degree or any coursework in Intellectual Property Law nor was she active on list-serves. Her knowledge came from the Trade Book World or publishers of fictional and non-fictional novels. My colleague insisted fan-fiction was illegal. I informed her that in theory that may be so, but there's a loop-hole, called the Fair Use Doctrine - that due to my position, I'd become a bit of an expert on. The loop-hole provides a nifty little test for copyright infringement :

Does the work infringe on the original creator’s ability to collect revenue from the original work?

Does it take the place of that work?

Does it infringe on the original author's copyright, blurring it, making it fair game?

And is the original work copyrightable to begin with?

Also is the work a true "derivative" of the original or in reality, a comment on it? a review? a criticism? or a parody? (Examples include “Wind Gone Wrong” – a parody and criticism of Gone With The Wind, Book/Movie/Television Reviews, Academic Criticism, An article on Buffy the Vampire Slayer – all utilizing content from the source in order to make a point or comment on it.

Is it just taking an idea from the original piece? Say a trope or character archetype? (An example - Robin McKinely's Sunshine - some people think this is fan-fic of Buffy the Vampire The Slayer (BTVS), or taking ideas from BTVS - if it is? So what. It is original in all respects. Another example - James Butcher in the Dresden Files creates a character that is described as being similar to one in BTVS - again, not infringement. Or how about “The Wide Sagrasso Sea” – the story of Rochester’s first wife from Jane Eyre or “Ahab’s Wife” – both are what might be considered “fanfic” but neigthe infringe on the copyright of the original piece. If the original piece is in the public domain – then of course it’s not an issue at all. Example – books based on Jane Austen’s Pride and Prejudice are not copyright infringements. Or if the estate agreed and commissioned a sequel – such as Scarlette the published sequel to Gone with the Wind.)

Finally, is the work being used for educational uses - such as in an archive or library? Is it advertising or marketing the work?

Then there's the amount of a work that can be used without permission depending on use and depending on the size of the original work. The longer the work is – the more you can use to make a point, the shorter – much less. And the test is more or less common sense – are you taking a substantial amount, to the degree that someone could read your work or your piece and not have to read or get the original? There was a German site that for a while got away with providing the complete television scripts to TV shows for free. This was a clear infringement of copyright law because the copyright holder was attempting to sell the same scripts. (Why buy it if you can download it?)

Is the work in the public domain? The length of time it takes a work to enter the public domain varies - it depends on when it was written, when the author died and which law it operates under. For instance, it takes longer for a work that was published after 1978 to enter the public domain then one before 1978. The period used to be life plus 50, now to comply with the WIPO Treaty, it is life plus 75. For years, UK and other countries got access to US works before the US got access to UK works. Also people in the UK and elsewhere were hesitant to publish a work first in the US or get a US copyright due to the fact that the protection wasn’t as long. Sonny Bono changed all that in 1998 with his extension.

So you are no doubt asking yourself – how do I know if my fanfic infringes on copyright law?

Well. Answer these questions:

1. Are you making money off of it? If you are then has the original source entered the public domain? If not, is your fanfic a parody? A completely different concept that merely borrows a few ideas but does not in any way a derivative, adaptation, or continuation of the original? If you were the original creator of this work – would you feel that your fanfic could deprive you of revenue if published or infringe on how the original creator wished the characters to be seen? (Ie. A slash fanfic being sold for money is an infringement of copyright law if the work is not in the public domain.) Another way of asking this question is:”the effect of the use upon the potential market for, or value of, the copyrighted work”.

2. How much of the original work have you co-opted? And have you gotten permission? Are you using lots of dialogue and screen shots from the original work? Or “The amount and substantiality of the portion used in relation to the copyrighted work as a whole.”

3. How is the fanfic being distributed? Are people paying to read it? Is it merely on your website or blog? Did you put it on a magazine that others buy? Is it being sold as part of a compilation?

4. Is it a novel tie-in commissioned by the copyright owner? If so, not really fanfic per se and not an infringement.

5. Is it parody? Or satire? Both are allowable under copyright law.

6. Is it a derivative work – such as say a computer game based on BTVS or a novel based on the series – that requires copyright permission.

Note: Under a 1992 Amendment, the fair use doctrine applies to published and unpublished works.

What about Real Person Fanfic?

This is a dicey area. You are okay under copyright law, since copyright law does not really come into play here. You are not okay under libel and defamation law and the penalities under defamation and libel law are higher than copyright. Copyright Law has a fine and an injunction, you might even get charged with compensatory damages. Libel and defamation could contain criminal and civil charges depending on the nature of the defamation and whether "malice" was intended. And there's another dicey little law you might want to take into account - "the right to publicity" or the person's ownership of their likeness and name and right to refuse unauthorized use of that likeness or name to sell things. The Right to Publicity is a statute that varies from state to state. Add to the mix, the "right to privacy". And you have a legal cocktail for disaster. Real Person Fanfic could be dangerous and the risk you are taking could be far greater than with ordinary fanfic. But not under copyright law.

People do not own copyrights or trademarks on their names. They do however have "a right to publicity" in the name. A famous case was Spike Lee vs. Spike TV (go here for a lawyer's perspective on that case: http://writ.news.findlaw.com/hilden/20030609.html) - where Spike Lee claimed that Spike TV would be confused with his name and he would appear to be supporting it. His claim was that Spike TV was using his name to sell or advertise a product. The New York Supreme Court supported Lee's claim. The only reason Spike TV won, was Spike Jonz was brought aboard as a defendent and they ended up settling. Normally you can't keep someone from using your name, unless of course your name has become part of a product - ie. corporate names such as Xerox are an example. For actors - their names are part of who they are - Elizabeth Taylor, Carey Grant, James Dean, Marilyn Monroe - all these names are trademarked by those actors and estates. Yes, you can call your kid Elizabeth or Carey or Jimmy. But you have to be careful not to cause confusion with the brand. Not all courts agree. After all we have "Jimmy Dean Sausage" and we have "Bush Barbecue Sauce". It comes into play if you are an actor who has the same name or a rival sausage company with the same name - the test is - is the consumer confused. Do they think that the James Dean is playing the role, when he's not, someone else with the same name is.

So what does this have to do with fanfic? If you tarnish the trademark or brand name - under the right to publicity, the person might sue you. However - It depends on how you do it. Parody and satire are permitted under the First Amendment and the Fair Use Doctrine. Fanfic in of itself is considered free speech. And people usually don't have trademarks in their names so much as in the whole package that their name represents. James Marsters for example has rights in his name to the extent that he is promoting it as a performer. He can't stop someone named Marsters, naming their kid James. Or a novelist from naming a character James Marsters - as long as the character is clearly not him (if it's clearly him - you are actually moving into "libel" territory which is another issue). And he can't stop that kid with his name from pursuing a career in acting. The kid could however be encouraged to find a different name to prevent confusion. What he can do is stop someone from using his name to make money off of his name, likeness or image. And his rights depend on which state and or country the action is taking place.

In her article on findlaw.com regarding the likeness of Dobby the house elf to Russian President Vladmir Putin, Julie Holden states: "A violation of the right is defined by California statute as an unauthorized use of a person's "name, voice, signature, photograph, or likeness, in any manner," for "purposes of advertising or selling." That right (which also comes from California's common law) is the reason that a company cannot, for example, just put Putin's name and face - or yours or mine, for that matter - on a bottle of vodka without consent.

Note - the words, for the purposes of advertising or selling. I doubt you'll get sued under the right to publicity law if you write fanfic about Marsters and Boreanze. However, if you sell the fanfic, then the rules change. You are now making a profit off of the actors names and likenesses without their authorization. Since they get money selling their name and likeness to people, specifically associated with the Television Characters they played, they can attempt to sue you over the infringement. But it won't be easy, as stated here in an article found on slate.com regarding Jessica Lynch, a real person in which a television network made a semi-fictional movie about:

The so-called "right of publicity" does give people a limited
right to control commercial use of their names, likenesses,
and identities. But the right doesn't extend to news reporting,
biography, fiction, and most entertainment, or to the advertising
of such works. Generally, the right of publicity applies only to
commercial advertising of other products and to merchandising. So,
NBC could make a movie about Lynch without her permission,
but it probably couldn't sell Jessica Lynch action figures.

Slate: Does Pfc. Jessica Lynch Own the Movie Rights to Her Life?
http://www.slate.com/id/2081488/

Generally speaking, it's only when you start making money off of their names and likenesses, things get dicey. So why doesn't Marsters sue you if you draw him and put his picture on a shirt? Well he can actually. If you start a shop selling Marsters t-shirts and make a living off of it, he can stop you. What he can't do is sue you for doing the drawing and selling it as "art". Or, for that matter stop you from writing an unofficial biography based on his life.

For more information on the "Right to Publicity" go here: http://www.publaw.com/rightpriv.html

That's the copyright/trademark/right to publicity side of the game. Now let's jump across the bench to libel and the right to privacy, two areas that I'm not very comfortable in and have not studied since 1994, so I'm relying on a little recent research and a lot of common sense. Real Person Fic - is weird because it involves libel. And libel is a separate area of the law from copyright. It has different tests. For legal advice on these areas, I would consult an attorney who specializes in the field.

There's a test for libel which can be found here:

Publishers Marketing Association: Alan J. Kaufman: Defining Libel
in Fiction
http://www.pma-online.org/scripts/shownews.cfm?id=559

First Amendment Center: David L. Hudson, Jr.: Libel in Fiction
http://www.firstamendmentcenter.org/Speech/arts/topic.aspx?topic=libel
_fiction

Libel is more complicated. Each state (and the District of
Columbia) has its own libel laws. And, no, fiction is not exempt,
even if you've changed the name and hair color of an otherwise
identifiable person. "The best defense to libel," say the authors,
"is verifiable truth." Included: detailed checklists -- concerning
fair use, copyright protection, copyright permission, libel,
and "media perils" insurance -- and sample forms for requesting
permissions, obtaining releases, summarizing permissions, and
writing libel disclaimers.

The Copyright Permission and Libel Handbook: Editoral Review by Jane Steinberg
http://www.amazon.com/gp/product/0471146544/103-8257266-7362234?n=2831
55

The test for libel is whether the plaintiff can claim that you have disparaged his character in some way. Have you invaded his privacy? Have you embarrassed him or her for that matter in public? Have you tarnished their image? The burden rests on the plaintiff. While there has been real person fiction published, all of it has been about people who are long dead. A dead person cannot be defamed, only a living person can. To my knowledge no one has published fanfiction on people who are still alive. Nor can I imagine a publisher doing so.

While it is highly unlikely Marsters and Boreanze are going to sue you if you write slash fanfic about them, they will probably do it if you publish it and by publishing, I mean for revenue - not just posting on your live journal or fan website. My suggestion? Tread very carefully. And if you want to do anything with it - such as create a website devoted to real person fanfic that is advertised? You may want to consult an attorney whose speciality is in libel and defamation law, just to be safe. (***This is basically my legal disclaimer, I am not licensed to give you legal advice, so please do not quote me if someone sues you!)

Effect of Trademark Law on Fanfic

Trademark law is a separate kettle of fish and with different tests. Note trademark law should not be confused with "right to publicity" (see above under real person fanfic).

It is harder to register a trademark than a copyright in something. In trademark law - you have to prove that the trademark is original, and not something used everyday or common. An example: Reader's Guide to Periodical Literature - an incredibly difficult trademark to register, I had to prove it was distinctive, which involved sending tons of supporting documentation to the trademark office. We could not register "Reader's Guide" obviously. Once you get the thing registered - you have to fight to make sure it stays protected. This means keeping people from making it a part of everyday speech or co-opting it. "Kleenex" for instance - fought hard to make others use "tissues", just as "Xerox" fought hard to force people to say "copy machine" in advertisements. It's tough because if it enters everyday lingo - you've done your job as a marketing person, but you lose the trademark. But because of the fear of losing a trademark – movie characters ask to copy something not Xerox it. And when someone wants to blue their nose they ask for a “tissue”.

Trade-marking fictional characters? Even harder.

You can't trademark a title and you cannot trademark a person's name. Book titles can’t be trademarked. Television titles can but within reason and only if you prove distinctiveness. You have to prove distinction and when trade-marking the character or title of the TV show - you have to link it to the work. Examples: "Buffy the Vampire Slayer" can be and is trademarked by Fox. That is a distinctive title and phrase. Angel on the other hand cannot be trademarked. It is not distinctive and the name has been used in numerous series and movies. "Angel the Series" - maybe. You also can't trademark "MASH" - that's an army term. But in association with the TV series? Sure. M*A*S*H If someone for instance wants to do a theme bar based on M*A*S*H or CHEERS - they have to get permission. If they want to use the name in an instance that has zip to do with those shows, no permission. If they decide to list the shows in a novel - Tina was watching M*A*S*H and had a crush on the character Hawkeye Pierce - no permission is needed. Now if she enters the TV show and she and Hawkeye have an affair – and the writer co-opts dialogue and stories from the show –and the depiction does not fit parody – then we are treading into copyright infringement. Most of this is really "common sense" but as we all know, not everyone has common sense.

Screen-shots, Images, and Icons

Images - photographic, paintings, drawings, films, and computer generated works are another dicey sub-category of copyright law.

First off it is harder to get rights to distribute or use images than text. I know I tried to get them. That group protects their copyright like they’d protect their first born child, with an iron fist. So you are more likely to get sued distributing an image than text. But, images are tricky. It depends on the image and how you are using it.

It is not copyright infringement to draw Spike or Buffy or draw a picture of James Marsters. Or even do a photograph collage of the characters switching body parts and heads around. They may hate it, but it ain’t infringement. Putting Gellar’s head on a nude model and telling the world it is her is not necessarily copyright infringement so much as libel and defamation of character – and she can sue you under those grounds. She does not own the copyright on her photographic image or necessarily her name. Any more than you or I own ours. Madonna can’t stop you from calling your kid Madonna any more than Sarah Michelle Geller can do it. They can stop you from hurting their image with gossip, but only to an extent. It is copyright infringement to sell a TV shirt with Spike on the front, his name and “Buffy the Vampire Slayer” underneath, but not copyright infringement with just a picture of “Spike” that you created and was not taken directly from another person's work. It all goes back to that test - are you taking revenue out of someone else's pocket? (ie. Fox has a competing Spike TV shirt and people are buying yours instead?) Same deal with book covers - say you wrote a series of essays on Buffy and want to use a screenshot from the show. You can't without Fox's permission. You can state: Essays on Buffy the Vampire Slayer with a black background and no problem. You can also draw the cover art. But you cannot put a photo of Sarah Michelle Gellar or James Marsters on the cover taken from the show or one taken by the actors and given to you.

Another perhaps better example - someone online recently posted a shirt they'd created with ironed on drawings of characters from Firefly as well as imagery taken from the show Firefly and the film Serenity. All of it was their own artwork and they got the idea from a shirt one of the characters wore on the series. Is this infringement? No. Can they sell it or show it in an art gallery? Yes. Of course they can. Just as Andy Warhol could do his paintings of Marilyn Monroe. It's not a derivative work or an adaptation. It is an innovative work distinct from the original. Note this is very different from selling a t-shirt with a photograph of Marsters as Spike, with his name on the front, BTVS under it, and a quote from the show on the back, which is infringement.

Same deal with posting photos to your website. If you drew the image? Created a collage of drawn or manipulated images? Not a problem. If you downloaded it via Bit Torrent and it was from the TV show -yes that is a problem. An even bigger one if you did not pay for the download and took it from a pirate site, but that's another issue. If you changed the image from that download to a degree in which it is a parody of the original or clearly something original in of itself - you have leeway.

The posting of pics, even slightly manipulated ones, to websites - got many fan-sites in trouble. Not all though. There's a reason for that - common sense again - it would be an incredibly stupid lawyer with lots of time on his hands to go after every single website that posts images from tv shows - not only do you risk pissing off fans, but you also risk losing free marketing and advertising for the show. This is why lawyers don't go after icon creators. Yeah, that Spike icon you made probably isn't legal under copyright law, but honestly it isn't hurting the show's revenue -if anything it's helping it, so no, we aren't going to force you to cease and desist. Same deal with my Areyn Sun icon or icons for Alias.

The fan-sites that were scolded were passing around spoilers - which in of themselves aren't copyrightable, what was copyrightable was the pieces of script, screen-shots, and film taken from the tv show before the tv show aired or was released to an audience. Example – one spoiler site posted a photo of Willow as DarkWillow prior to the airing of the episode in which she had become DarkWillow. Another posted portions of actual dialogue. That was the infringement and why a popular spoiler site almost got shut down and why others did. People thought it was the stuff they wrote, ie. essays, fanfic, spoiler spec. No. It was copyrighted material - teleplays, screen shots, etc. And you can use lines of dialogue from a TV show to make a point in an essay, to write a review, to even discuss and to create fanfic from - what you can't do is take a substantial amount of dialogue so you are basically giving the script or original work away for free or selling under your name.

You can also use screen-shots from a TV show to write a review or do an academic analysis for educational purposes – but you have to be prepared to prove it. Sometimes it is fairly obvious. Example: the web site All Things Philosophical About Buffy The Vampire Slayer (ATPO)– is clearly analyzing for educational purposes - the reviews include philosophical quotes, the site is linked to from slayage.tv – an academic site that publishes an academic journal. Buffy Cross and Stake (B C& S)on the other hand was set up as a spoiler discussion board and posts mostly fanfic and fun items. There is scholarly discussion but it is not the point of the board. Lawyers went after BC & S in 2003, they would never go after ATPO. Another example is Tea At The Ford - a web site that has two things in it's favor - one - it is largely private and two, it is clearly academic in nature.The private bit ensures that the public does not have access to everything it posts. The academic bit ensures the majority of its screenshots are used for educational purposes or to critique and or review the show, which is permissible under Fair Use. What they and other sites like them have to be careful of is how much they use - do they use screenshots from an entire espisode to the extent that you do not need to buy the DVD or watch an episode? The test is - can the amount of content you've appropriated for your analysis be seen as an alternative to getting the original? Does it take the original's place? And if so, to what degree?

What about Vidding?

Vidding is weird. For those who have no clue what I’m talking about – it is basically creating a mini music video using screen shots from a tv show and a popular song. I honestly think tv shows and musicians look at it as free advertising. So far it only increases interest in the original work and the music. It has not robbed the creator of revenue. Nor polluted the trademark. The creator of the vid either is parodying the original, creating a homage to it, or a teaser to entice others - much like someone making a movie trailer. So vids possibly fall under the marketing exclusion. At any rate - you'd have to be dumb to sue someone who is bringing you an audience. Copyright law on its face might call vidding illegal, but it's not if you analyze the cost and benefits under the statute.

"In conclusion or just apply the common sense test."

Intellectual Property Law is an inexact science that keeps changing as technology and works of art change. The struggle society has with it is to ensure it protects property without infringing on other rights, such as education, information, creativity, freedom of expression, advertising, and the person's ability to play with and enjoy the original work. Not an easy thing to do. That's why when you read case law on the topic it seems to be contradictory at times. It's not; you have to look at the issue on a case by case basis.

And the best test is plain old fashioned common sense. Put yourself in the original copyright holder’s shoes – would you have problems with what you are doing?

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Originally posted by MrT:
good point made by Kane 1 over on the OB...

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Hang on - you've rec'd an E-MAIL demand for retrospective fees .... what legal body makes demands by e-mail? Treat it as a scam claim to extort money and report it to the Police and if you feel like it Universal but make the police your first stop (may be an FBI report would be appropriate in the US)

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...does make you wonder.

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Originally posted by MrT:


Not a whole lot of common-sense flying around Universal at the moment I reckon... My heart goes out to those staunch Browncoats who have worked hard, profited little, and are thanked not at all by the boys who get the major cashy cash.

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Originally posted by Leiasky:

1. A licensee that has PAID Universal a fee to manufacture product under a property that is held by the studio has complained.

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Originally posted by kaneman:
People, She was selling other peoples sh*t...She is a thief, I know we all love our thieves around here, but come on ....They should take her to court and sue the wrinkles off her ass.....Well, I would.............

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Originally posted by embers:

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Intellectual Property Law and the Fan - A Primer
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You can't trademark a title and you cannot trademark a person's name. Book titles can’t be trademarked. Television titles can but within reason and only if you prove distinctiveness.
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Screen-shots, Images, and Icons
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It is copyright infringement to sell a TV shirt with Spike on the front, his name and “Buffy the Vampire Slayer” underneath, but not copyright infringement with just a picture of “Spike” that you created and was not taken directly from another person's work.
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Another perhaps better example - someone online recently posted a shirt they'd created with ironed on drawings of characters from Firefly as well as imagery taken from the show Firefly and the film Serenity. All of it was their own artwork and they got the idea from a shirt one of the characters wore on the series. Is this infringement? No. Can they sell it or show it in an art gallery? Yes. Of course they can. Just as Andy Warhol could do his paintings of Marilyn Monroe. It's not a derivative work or an adaptation. It is an innovative work distinct from the original.
...

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Originally posted by Wallraven:
From these bits, I'd say 11thHour has at least one legal leg to stand on

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2) You really expect me to believe that a firm of lawyers couldn't trace an address from a website when they have a legitimate legal claim to retroactive fees and stock? Sorry but any lawyer employed by an organisation the size of Universal would have no problem doing that.

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Originally posted by embers:

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Originally posted by Wallraven:
From these bits, I'd say 11thHour has at least one legal leg to stand on

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it is a difficult question...one of her main images was this one (offered in different colors):

it is obviously original art work,
but using the phrase 'can't take the sky from me'
and the word 'Serenity' makes it clear that it is related to the movie...
I think a good lawyer could beat this wrap because it is an original personal statement and not a copy of anything from the movie,
but a bad lawyer would probably lose and end up costing 11thHour a lot of money ....
the whole situation really sucks and I hope that Universal will be satisfied with her taking down her shop w/cafepress and will drop it.

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