Copia de Mashup All the Things: Fair Use and Trademarks
Originally presented by Heidi Tandy, Esq. at the Professors' Luncheon at INTA2016.
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PRESENTATION OUTLINE
Mashup All the Things!
Fair Use, Fans and Trademarks in 2016
Presented by Heidi Tandy, Esq. #INTA2016
Photo by JD Hancock
The purpose of a trademark is to designate source...
Photo by JD Hancock
but WORDS
have many other uses.
As do images
Fans get creative out of love for the
source material
(no matter what Diana Gabaldon thinks).
Where are the lines for
- Quotes?
- Allusions?
- Licenses?
- Fanworks/follow-on works?
- Social Media Content?
Photo by Will Montague
IS THE USE
- a designation of source? Whose?
- making comparisons?
- for discussion, criticism, comments & analysis?
- "noncommercial"?
Photo by Paul Jerry
1. It's complicated.
2. No, it isn't.
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- Fanworks
- Education
- Museums
- Art
- Commentary
- Civic Discourse
- Activism
- Parody (sometimes)
This list includes a range of content that can be noncommercial or commercial, but can be able to make Fair Use of trademarks in either circumstance, as the commercial nature of the follow-on work is not the sole determinor.
Photo by jurvetson
Commentary & Activism
Sometimes the cast - or The Powers That Be - start the meme.
Sometimes the fans create the art.
Fans put themselves into the narrative.
and make it part of them
This image from an etsy store showcases works that include a trademarked element from the Harry Potter series - namely, the House colors - but use it in a way that has a commercial element, but otherwise meets the criteria for Fair Use of a trademark (as well as of a copyright).
Taking a story where they don't think canon will go...
Use the brand to comment.
Again, fans make a point about the Harry Potter series by using a trademark from the Harry Potter series - the Weasley Sweaters - as well as the trademarked characters, who are also protected by copyright.
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IT MAKES AN IMPACT.
The original cast for Harry Potter & the Cursed Child, opening in May, 2016 in London.
"official" content is alongside fan creations?
Is there likelihood of confusion when
Can a fanwork have an "official" trailer? What happens when that trailer is showcased alongside "official" Star Trek content?
Creative fans usually do not want to create pursuant to licenses, or to make money.
Yes, some fans want to create authorized content or work under a license from the copyright/trademark owner. But most fans want to continue their discussion in artistic and narrative forms, and if they use trademarks in the process, that's ancillary to the story they want to tell or the visual they want to share.
Fanwork or Official Merch?
But sometimes it's hard to tell if it's
Disclaimers
give clarity.
Creative fans use
creative disclaimers.
TIP: don't say "I don't own anything" in the disclaimer, or someone may take your creation and sell it on Amazon under the (mistaken) belief that what you've shared is in the public domain. In the US, it usually won't be, because it's complicated to give up copyright in a work.
Instead, say something like: This story is based on characters and situations created and owned by [_____________]. No money is being made and no copyright or trademark infringement is intended; I reasonably believe that any use of third party copyrights and/or trademarks is pursuant to Fair Use principles and laws.
Instead, say something like: This story is based on characters and situations created and owned by [_____________]. No money is being made and no copyright or trademark infringement is intended; I reasonably believe that any use of third party copyrights and/or trademarks is pursuant to Fair Use principles and laws.
Photo by JD Hancock
Is a YouTube show analyzing every song on Beyonce’s Lemonade, news or commentary?
What if there are ads?
Does visual differ from textual?
Photo by Muffet
Do we need to distinguish between news commentary and commenting on goods/services of a ‘famous’ mark owner?
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YouTube Policies
impact
content creation -
but differ on
Trademarks & Copyrights
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She who owns the servers sets the policy &
impacts the laws.
More information is available at http://www.transformativeworks.org/legal/ and http://www.transformativeworks.org/faq in the LEGAL section.
Artistic Relevance
© laws don't give a monopoly.
© analysis doesn't look for artistry
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"Clean Slate"
No trademark owner holds a monopoly on a word.
For more information, please visit http://tushnet.blogspot.com/2013/05/never-steal-anything-from-someone-you.h...
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Thus, overreach, leading to
fan confusion, overreaction & chilling effects.
If there is no likelihood of confusion...
Photo by FutUndBeidl
And no
"commercial" use...
Photo by Joe Wilcox
and the infringer's intent is something other than commercial piggybacking off the mark owner...
Photo by Zi O-ne
Where do we look
for a "safe harbour"?
Should we have a DMTA - a Digital Millennium Trademark Act - with a safe harbor for sites that go through a process in taking down allegedly infringing works, and putting works back up if the follow-on creator shows why they are not infringing?
Descriptive & Nominative
"Can I mention real things in my fiction and art?"
Short answer: generally, yes, unless the follow-on work's purpose is to create and/or engender likelihood of confusion.
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"We require users to respect our copyrights, trademarks, and other IP rights." --Mtv ToU
A 2014 discussion of this topic can be found at http://www.isfanficlegal.com/post/92481884824/hey-teen-wolf-fandom-mtv-has-...
Photo by Berto Garcia
OR LORD VADER?
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Emo Kylo Ren would be disappointed by anyone tarnishing his grandfather.
The Powers That Be would never license or make?
Can you create something that
Dalek Kimono available on etsy in May, 2016.
and Laches
Pride and Prejudice
More discussion of this topic is available in Anne Jamison's FIC: Why Fanfiction Is Taking Over the World, at pp. 287.
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