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Copia de Mashup All the Things: Fair Use and Trademarks

Originally presented by Heidi Tandy, Esq. at the Professors' Luncheon at INTA2016.

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. What is a noncommercial use?

2. Is it the only test that counts?
Photo by captcreate

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.
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?

Photo by smbuckley23

YouTube Policies
impact
content creation -
but differ on
Trademarks & Copyrights

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

Photo by crimfants

"Clean Slate"
No trademark owner holds a monopoly on a word.

Photo by rutty

Thus, overreach, leading to

fan confusion, overreaction & chilling effects.

Terms of Use

If you give a user a license...
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Craft it carefully

because...

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

other factors

must be evaluated in light of...
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That Intent and Purpose.

Photo by TheOtter

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.
Photo by FACEBOOK(LET)

Registered Marks

can be noncommercial
Photo by paul bica

"We require users to respect our copyrights, trademarks, and other IP rights." --Mtv ToU

Photo by Berto Garcia

What are the meanings of

RESPECT?
Photo by @YannGarPhoto

Do you have to respect the bad guy?
If so, how?

Photo by Nata Luna

Voldemort?

Can you tarnish
Photo by GregPC

OR LORD VADER?

Click to Edit

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.
Photo by ginnerobot