Copyright Infringement Reports
A forum to report, and deal with cases of excessive copyright infringement that do not necessarily qualify as plagiarism. Also to contest allegations of CI and discuss how to rectify infringement for particular case.
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HorusTheAvenger

TABLE OF CONTENTS


COPYRIGHT INFRINGEMENT: THE BASICS


  1. What is copyright infringement?
  2. How is copyright infringement different from Plagiarism?
  3. Why short phrases and titles are not copyright infringement
  4. How much quoting is too much?
  5. Quoting canon in fanfic and when that is copyright infringement
  6. Quoting works in the public domain
  7. The problem with 'Read the Books'
  8. The problem with 'Verbatim Fanmakes' and Substituted Character Stories
  9. The problem with using copyrighted lyrics
  10. Won't giving credit/posting disclaimers absolve me of copyright infringement?
  11. Why is CI a problem when I am not earning anything from reposting the copyrighted material on FFN?
  12. The stance of the FFN admins on copyrighted content.

FREQUENTLY ASKED QUESTIONS


  1. Why is my account name listed on this forum and/or the Copyright Infringement C2?
  2. You're wrong! My story is allowed under 'Fair Use"!
  3. My story is a Parody!
  4. How do I get my stories removed from the C2
  5. How do I get my name removed from this forum?

Compiled by the combined efforts of the TAPIR and CIR staff

As this is not a chat thread, it will stay locked unless TAPIR/CIR staff is adding to it.

2/2/2014 . Edited 8/12/2015 #1
HorusTheAvenger

ALL ABOUT COPYRIGHT


What is copyright infringement?

A basic definition can be found here: www.copyright.gov/help/faq/faq-definitions.html

What is copyright infringement? As a general matter, copyright infringement occurs when a copyrighted work is reproduced, distributed, performed, publicly displayed, or made into a derivative work without the permission of the copyright owner.

More specifically, the definition given here can be referenced: legal-dictionary.thefreedictionary.com/copyrightinfringement

A copyright is a legal device that gives the creator of a literary, artistic, musical, or other creative work the sole right to publish and sell that work. Copyright owners have the right to control the reproduction of their work, including the right to receive payment for that reproduction. An author may grant or sell those rights to others, including publishers or recording companies. Violation of a copyright is called infringement.

Copyright is distinct from other forms of creator protection such as Patents, which give inventors exclusive rights over use of their inventions, and Trademarks, which are legally protected words or symbols or certain other distinguishing features that represent products or services. Similarly, whereas a patent protects the application of an idea, and a trademark protects a device that indicates the provider of particular services or goods, copyright protects the expression of an idea. Whereas the operative notion in patents is novelty, so that a patent represents some invention that is new and has never been made before, the basic concept behind copyright is originality, so that a copyright represents something that has originated from a particular author and not from another. Copyrights, patents, and trademarks are all examples of what is known in the law as Intellectual Property.

(emphasis added)

A general guideline of copyright infringement, colloquially referred to as piracy, can be found here: chillingeffects.org/piracy/faq.cgi "Fair Use" will be covered in detail below.

Be aware that even copyright infringement that is not criminal in intent can carry heavy penalties if a civil suit is filed by the copyright holder or their agent. A simplified overview can be read here: www.lib.purdue.edu/uco/CopyrightBasics/penalties.html

It is important to note that copyright infringement does not necessarily mean verbatim copying of a work. If a work is "substantially similar" to the original, then the copyright has been infringed. An understanding of this concept can be found here: www.osterbergllc.com/wp-content/uploads/2013/09/Practical-Law-Article.pdf

Striking similarity is similarity between works that is either so comprehensive or so exact that it cannot be explained other than as a result of copying. ... The assessment ... is not limited to similarities between copyright-protected elements of the works.

It must be understood, however, that with direct copying proof of 'substantial similarity' is in no way required.

www.bingham.com/Alerts/2012/03/Ninth-Circuit-Clarifies-That-Substantial-Similarity-is-not-a-Required-Element-of

In other words, a plaintiff need not prove substantial similarity if it proves the defendant copied the whole work. Evidence that a defendant directly copied an entire work can consist of testimony based on directly observing the copying.

How is copyright infringement different from Plagiarism?

Simply put, plagiarism is a moral and ethical issue. Copyright infringement is a legal issue over which one can be sued.

There is a good comparison of the two given in easily understandable terms here: www.innovateus.net/innopedia/there-difference-between-copyright-infringement-and-plagiarism and here: www.plagiarismchecker.com/plagiarism-vs-copyright.php

The following provides an excellent treatise on plagiarism and its various forms: www.plagiarism.org/plagiarism-101/types-of-plagiarism

Citation of a work does not mean that it is not considered plagiarism, however; as that site also explains here: www.plagiarism.org/plagiarism-101/what-is-plagiarism

copying so many words or ideas from a source that it makes up the majority of your work, whether you give credit or not (see our section on "fair use" rules)

is considered to be plagiarism.


Why short phrases and titles are not copyright infringement

Short phrases, catchphrases and titles are not copyrightable under US law:

Source:

www.copyright.gov/circs/circ34.pdf

Copyright law does not protect names, titles, or short phrases or expressions.

Even if a name, title, or short phrase is novel or distinctive or lends itself to a play on words, it cannot be protected by copyright. The Copyright Office cannot register claims to exclusive rights in brief combinations of words such as:

• Names of products or services

• Names of businesses, organizations, or groups (including the names of performing groups)

• Pseudonyms of individuals (including pen or stage names)

• Titles of works

• Catchwords, catchphrases, mottoes, slogans, or short advertising expressions

• Listings of ingredients, as in recipes, labels, or formulas. When a recipe or formula is accompanied by an explanation or directions, the text directions may be copyrightable, but the recipe or formula itself remains uncopyrightable.

Subject Matter of Copyright

Under section 102 of the Copyright Act (title 17 of the U. S. Code), copyright protection extends only to "original works of authorship." The statute states clearly that ideas and concepts cannot be protected by copyright. To be protected by copyright, a work must contain a certain minimum amount of authorship in the form of original literary, musical, pictorial, or graphic expression. Names, titles, and other short phrases do not meet these requirements.

Accordingly, short phrases like "Oh boy!" or even well-known catchphrase of a character such as "[Something] sense is tingling!" cannot be copyrighted, Therefore "no copyrighted lines" directive from the FFN admins cannot apply if the section of text itself is too brief and cannot be copyrighted.

This is also why short pop culture references or quoting of brief catchphrases that may be in any of your works not an issue. There may be issue if catchphrases are trademarked, but that is different topic entirely and very unlikely to apply here. It is when it moves beyond "short phrases" into whole lines of dialogue is when it crosses the line into danger area.


How much quoting is too much?

This is a question that has been asked in numerous court cases. A general consensus is that a small amount of credited quotation is permissible. However, it is important to note that even a small quotation can be considered copyright infringement if that which is quoted is "the heart" of the original work.


Quoting canon in fanfic and when that becomes copyright infringement

Fanfic based on an existing creative work may occasionally find the need to quote canon material as a point of reference to how the fan-created material ties in to the original story. There is however, a vast difference between

  1. Quoting a line or two or describing a scene from the original, and
  2. Copying whole portions from the original verbatim and making minor changes to it the copied section and passing it off as 'fanfic'.

It should be stressed that the legality of fanfic lies in a grey area, and it exists in its currently form mainly because content owners tolerate it as the generated interest and extension of fandom longevity benefits them.

Quoting minor portions (i.e. a single line of dialogue) or providing a summary of canon events before moving on to original fanfic material is much more likely to be tolerated by the copyright owner as there are no ill effects to their livelihood.

Reproducing whole sections of work however, is essentially distributing of the content creator's work in whole or in part for free and negatively affects the content creator's ability to earn a living from their work. It is at this point when the work goes from fan-work to copyright infringement.


Quoting works in the public domain

First you must ascertain that what you're wanting to quote is in the public domain. Just because it's openly available doesn't mean that it isn't copyrighted.

This chart will help in determining whether the work you are wanting to quote is in the public domain:

copyright.cornell.edu/resources/publicdomain.cfm

If the work you are wanting to use is in the public domain - such as poetry by Walt Whitman - it does need to be cited. A definition of citation can be found here: www.thefreedictionary.com/citation.

Methods used to cite sources vary. A basic guide for those used in academic circles can be found here: owl.english.purdue.edu/owl/section/2/

A citation within a transformative fan fiction is simple. It can either be cited underneath the lines quoted

Once more unto the breach, dear friends, once more;

Or close the wall up with our English dead.

In peace there's nothing so becomes a man

As modest stillness and humility:

But when the blast of war blows in our ears,

Then imitate the action of the tiger

-Shakespeare, Henry V: Act III, Scene 1

or it can be cited by a footnote. This would be more appropriate if the quotation is used within the prose itself.

Failing to cite work not composed by the individual posting it is considered to be plagiarism.


The problem with 'Read the Books'

This can also be applied to "watch the movie" or "watch the show" stories.

Most people have heard of MST3K. Mystery Science Theatre 3000 was a group of comedians who "riffed" on B-movies. While you may think that RTB is the same, there are a few things you need to recognize.

  1. Best Brains Inc. chose movies where the copyright had expired, or where they could obtain the license to "MST" the material relatively cheaply. They did so because they were low-budget and didn't want to be sued.
  2. Even though Best Brains wanted their initial viewers to record their shows and pass them around, they didn't want them to be sold. That infringes on their copyright. Reference the Betamax case. You can find more information about their official position on this here: www.mst3kinfo.com/mstfaq/legal.html
  3. Why RiffTrax is allowed to provide commentary on 'modern' films (www.mst3kinfo.com/rifftrax/index.html) is because they do not provide the film along with the commentary. They're not violating anyone's copyright because they're not giving away or selling someone else's copyrighted content.

So, in a nutshell, the issue is that the stories posted include the copyrighted content. Copyright holders are going to defend their copyrighted material because that's their only protection. What that means is when they find out that you've taken their content and you're depriving them of their income by giving their content away, they're likely going to send you a Cease & Desist order. If you continue to violate their copyright after receiving such a notice, they can sue you for criminal liability, rather than just the civil suit they can file for the first infraction.

But, I like these character commentaries on Harry Potter/ Percy Jackson/ Twilight/ Vampire Academy / etc.

The way that the MST3K episode commentaries were written, the way that the RiffTrax commentaries are written, isn't "on the fly." These comedians sit down and watch the show. Originally, the comments they made were typed up by a paid typist who would record the time index (in the film) next to the comment. How this applies to writers of these types of stories is simple: instead of including every bit of chapter one of The Sorcerer's Stone, simply note where you are in the text.

Hermione opened the book, unsure about its contents, but certain that she'd encountered much stranger things since finding out she was a witch, and not a freak. Turning to the first page, she hummed briefly, then promptly snorted after reading the first paragraph. "Of course they would be, and they certainly didn't. Most boring, mundane cattle that England ever had the misfortune of housing. That's the Dursleys."

The inclusion of the text isn't necessary for the commentary. If readers badger users to include it, the answer is simple: a copy can be obtained legally at the local bookstore, or the library for 'rent' and readers can easily follow along that way. If a user wishes, they can include page and paragraph notations the same way that the original notations for MST3K included time indices. If this is done, it would be imperative to note which printing was being used.

A note: Re-wording the copyrighted text so that you're not posting the original text but you are posting the exact same story constitutes both plagiarism and copyright infringement. See the above section on substantial similarity for an understanding.


The problem with 'Verbatim Fanmakes' and Substituted Character Stories

This particular genre includes (but is not limited to) any work wherein the original is maintained with a change of only proper nouns. Gender-swap stories which consist of the copyrighted text with "Harry" changed to "Artemis" are included here.

These stories do not transform the work which they use. They copy verbatim scripts and texts. Often, this is done for purposes of self-insertion. There may be some alteration of pronouns, generally from singular to plural to allow for the inclusion of an extra protagonist.

The "it's just for fun" and "they won't care" excuses have been used as defense for posting this material.

  • "It's just for fun" - then why risk being sued? By posting it, you're violating copyright as you are distributing and publicly displaying the copyright owner's content without their consent.
  • "They won't care" - www.fanfiction.net/guidelines/ - There is a list at the bottom of that page of individuals who cared enough not to even allow fan fiction of their works to be posted here. If Warner Bros sends the site a C&D, no one will be able to post Harry Potter (film) or Batman (film) fan works here at all (just two examples). If Disney issues one, that will include all of their properties - Percy Jackson, all the cartoons, any Marvel comic/cartoon/movie... Also, for those who really think that copyright owners 'don't care,' please review Nintendo's decision regarding YouTube "Let's Plays" last year. They very kindly chose not to sue when they easily could have.

Communication between this forum's moderators and copyright holders has indeed evidenced that they do care - very much.


The problem with using copyrighted lyrics

While not copying the musical element of the song, by posting the lyrics, users are infringing on the rights of the writers of those lyrics. Copyright suits in the music industry abound for the copying of lyrics as well as the instrumental component. Information on pending legislation can be found here:

  • www.billboard.com/biz/articles/news/legal-and-management/5785701/nmpa-targets-unlicensed-lyric-sites-rap-genius-among
  • www.slate.com/blogs/browbeat/2013/11/13/rap_genius_copyright_lawsuit_national_music_publishers_association_threatens.html
  • www.refinedhype.com/hyped/entry/nmpa-rapgenius
  • www.nytimes.com/2013/08/07/business/media/copyright-lawsuit-targets-cover-songs-on-youtube.html?_r=0
  • www.nytimes.com/2013/11/12/business/media/in-music-piracy-battles-lyrics-demand-respect-too.html?ref=arts

Of note is that the suits being filed are currently focusing on the sites which receive income from the posting of these lyrics. Fanfiction.net, while not named, does indeed receive monetary benefit any time stories with such content are loaded from the advertisements at the top and bottom of each page. The report on which the NMPA is basing their suit reference the ad revenue upon which each site profits.

Do note, however, that profit is not required in order to be guilty of copyright infringement.


Won't giving credit/posting disclaimers absolve me of copyright infringement?

Proper accreditation of another's work is more to do with plagiarism. Simply stating whence the material was taken does not permit someone to post a copyrighted work. As this lifehacker article puts it:

Plagiarism can be avoided by providing attribution and giving credit, copyright infringement can not.

lifehacker.com/5992419/the-best-ways-to-be-sure-youre-legally-using-online-photos.

While in some cases plagiarism and CI can overlap, giving credit does not change whether a work infringes copyright or not because giving credit to the original content creator is not the issue with copyright infringement in the first place. The issue with CI is violating the original content creator's copyright, that is, unauthorized reproduction and distribution of the work upon which the author relies on for their livelihood.

Disclaimers on a copyright infringing work only serve to advertise that one is aware that they are publishing content not created by them but are willfully continuing to commit the violation.


Why is CI a problem when I am not earning anything from reposting the copyrighted material on FFN?

The same reason why stealing books from a bookstore and donating them to public libraries is still stealing. The bookstore has still suffered a loss as the result of the action.

The person committing a crime does not have to earn anything from the action for the victim to be negatively affected.

Profit is not required in order to be guilty of copyright infringement.


The stance of the FFN admins on copyrighted content.

The below is a copy of a communication from the FFN admin, Zack, regarding the use of copyrighted passages in fanfiction on FFN:

Subject: Query regarding novelizations and quotation of copyrighted dialogue in fanfiction

horusavenger 7/14/13

To: FanFiction.Net Support

Dear FFN Admins,

I have a query about whether quotation of dialogue from source material is allowed on Fanfiction.net or if it considered a violation of the guidelines?

Also would like to ask about the permissibility of novelizations of stories from another media as fanfiction. For example, if one plays a role-playing game and then writes a novel version of a story based on events of the game in their own words, but with the original dialogue retained, is it permissible?

Is it still permissible if it is modified to star different characters, for example, fan characters, not in the source material?

Thank you for your time. We are a volunteer group who work on getting plagiarized and copyright violating material off FFN, as such, your clarification on the subject would be most helpful.

Regards,

-H.A.

The Plagiarism Report

http://www.fanfiction.net/forum/The-Plagiarism-Rep ort/124913/


Re: [#51766] Query regarding novelizations and quotation of copyrighted dialogue in fanfiction

FanFiction.Net Support 8/01/13

To: horusavenger

To be safe, we do not allow any inclusion of copyrighted passages within fanfictions.

Please help us spread the word.

Zack


This should settle any disputes regarding the copyright issue. All parties are welcome to reproduce this correspondence, but we request that the message be left intact and unedited.


2/2/2014 . Edited by RogueMudblood, 6/29/2015 #2
HorusTheAvenger

FREQUENTLY ASKED QUESTIONS


Why is my account name listed on this forum and/or the Copyright Infringement C2?

Material within your story has been found to infringe on the copyright of another.

Please note that even if you purchase the original work you're copying from, even if you personally don't gain financially from the posting of material on FFN or through FFN, even if you notice similar stories/content on FFN, and even if you give credit to the owner of the copyright, you can still be guilty of copyright infringement. Simply stating "no copyright infringement intended" is not a blanket authorization to post someone else's copyrighted material.


You're wrong! My story is allowed under 'Fair Use"!

Before a claim of 'fair use' can be made, we first need to understand the concept, and what Title 17 section 107 actually says. That document can be viewed here: www.copyright.gov/fls/fl102.html

"Fair use" is not a blanket authority to do whatever one wishes. Though this link is specific to a university's in house policy, it has a good guideline by which any writer can judge whether they are violating the "fair use" doctrine: www2.wlu.edu/x30754.xml

While this explanation is a bit simplistic, it is noteworthy that even the university recognizes that not all educational uses of copyrighted material can be considered "fair use."

Another excellent, though basic, understanding of fair use can be found here: www.youtube.com/yt/copyright/fair-use.html

This article, written by an attorney who has published a treatise on copyright, gives more information: fairuse.stanford.edu/overview/fair-use/what-is-fair-use/ Noteworthy in that link are the numerous cases cited, both online and off, and the factors indicated as reasons for the judgements given.

The most common misconception with regard to "fair use" and fan works is profit. Do note that the FBI warnings are very clear on this:

The unauthorized reproduction or distribution of this copyrighted work is illegal. Criminal copyright infringement, including infringement without monetary gain, is investigated by the FBI and is punishable by up to 5 years in federal prison and a fine of $250,000.

(emphasis added)

It is also important to recognize that the site itself does generate an income each time the advertisements at the top and bottom of the pages are loaded. Remember that though an individual posting material to the site may not receive a profit, that individual is responsible for the material they post, and the indemnity clause in the service contract (TOS) that is electronically signed each time the "I agree" button is clicked in order to make a posting allows the site administrators to pass on any incurred fines to the user whose content generates those fines.


My story is a Parody!

First, some definitions of the word "parody":

  1. a literary or musical work in which the style of an author or work is closely imitated for comic effect or in ridicule (www.merriam-webster.com/dictionary/parody)
  2. A literary or artistic work that imitates the characteristic style of an author or a work for comic effect or ridicule. See Synonyms at caricature. (www.thefreedictionary.com/parody)
  3. a humorous or satirical imitation of a serious piece of literature or writing: his hilarious parody of Hamlet's soliloquy. (dictionary.reference.com/browse/parody)
  4. an imitation of the style of a particular writer, artist, or genre with deliberate exaggeration for comic effect: the film is a parody of the horror genre (www.oxforddictionaries.com/definition/english/parody)

Do note that the common themes here are humor and close imitation of style.

Most people are familiar with the works of "Weird Al" Yankovic. He does get permission from the original artists before he parodies their work - the one unfortunate misunderstanding being Coolio and the song "Amish Paradise." To clarify, Yankovic was told he had permission, but when the song came out, Coolio said he was offended by it and had never given permission.

Having provided the above information, it is important to understand that copying a script verbatim and changing out the characters' names is not a parody. Having Mulan's lines come out of Belle's mouth is not a parody.

Famous film parodies are "Police Academy," "Spaceballs," "Austin Powers," "Scary Movie," and "Robin Hood: Men in Tights." Each of these movies clearly has its own original content, and while it mimics the work on which it is based in style, it does not copy the script of the original.

Literary parodies also abound, among them Cold Comfort Farm by Stella Gibbons which parodies authors such as D.H. Lawrence and Thomas Hardy, and The Lost Diaries edited by Craig Brown. This work goes so far as to parody President Obama and Queen Elizabeth II.

Even Wile E. Coyote and the Roadrunner were a parody - of Tom and Jerry.

While the first two elements listed after the definitions are what cause a work to be considered a parody and not a serious artistic endeavor, the key element that is evident in all of the works that have "made it" as parodies is their original content.


How do I get my stories removed from the C2?

If your account is compliant and no longer has any copyrighted infringement, you can request for the story to be removed from the C2 by posting on your case thread or PMing a mod. Posting on case threads gets better results.


How do I get my name removed from this forum?

If your account is compliant and no longer has any copyrighted infringement, you can request for the thread to be deleted after it has been inactive for 1 month by posting on your case thread or PMing a mod. Posting on case threads gets better results.

Note: This only applies to CI-only cases. CI cases that also involve intentional plagiarism remain on the forum indefinitely.

2/2/2014 . Edited 8/12/2015 #3
HorusTheAvenger

The following are some useful websites and articles that may be of interest to those who wish to know more about Copyright Infringement and Fan fiction

Useful links:


Frequently Asked Questions (and Answers) about Fan Fiction

chillingeffects.org/fanfic/faq.cgi


Copyright Infringement Legislation and the Future of Fan Fiction

by Tiffany Stevens

How Internet laws could affect the popular genre.

constructionlitmag.com/culture/books/copyright-infringement-legislation-and-the-future-of-fan-fiction/


Karen Traviss' copyright information page

She explains fair use, permission, copyright, and the fact that profit is not required.

www.karentraviss.com/page0/index.html


Scribd's breakdown: "What happens when I upload content for which I don't own the copyright or don't have permission to upload?"

Emphasizes the different ways by which one may find themselves liable and guilty of copyright infringement.

www.scribd.com/copyright/dont-own


A generalized overview at legalzoom

www.legalzoom.com/articles/2-live-crew-weird-al-yankovic-and-the-supreme-court-on-parody

Of specific interest:

Use That Clearly is Not Fair

One action that does not pass muster under any test is using an entire original work in the creation of another. This was the conclusion in a New York district court decision involving Walt Disney productions and an adult film company. Disney sued for copyright infringement when the company used the entire "Mickey Mouse March" during a scene depicting sexual intercourse. The court determined that using an entire work is not fair use. It also said that the use was purely for financial gain and had no artistic value or value as social commentary. Therefore, it could not fall under the parody defense.

2/2/2014 . Edited by RogueMudblood, 6/29/2015 #4
RogueMudblood

It is important that readers of this material recognize that we are not a substitute for consulting an attorney. We are happy to provide you links and exposition on copyright laws, but we are not a substitute for seeking permission from the copyright holder or speaking to an attorney regarding the posting of someone else's copyrighted content.

Do be sure that if you are asking permission from the copyright holder to post material, you be clear about what you are seeking permission to do. For example, asking "Can I write a fan fiction where Harry Potter reacts to reading about himself?" is not the same thing as "Can I openly post on the internet large sections of Ms. Rowling's copyrighted Harry Potter series with the intent of providing commentary on each and every line of her books?"

Likewise, "Can I write a parody of "Mulan"?" is not the same as "Can I take the script of Mulan and post it openly on the internet changing only the proper nouns?" Another example is "Can I write a story where Percy is a girl?" versus "Can I change Percy's name to Annabeth and post the entire content written by Rick Riordan publicly online?" Also, "Can I write a fictional work based on [song title here]?" is not the same as "Can I post the entire lyrics of [song title here] on a fan fiction website?"

It is also necessary that if you are seeking permission, you advise the copyright holder where the material will be posted and the terms of service regarding posts on that website. The terms here on FFN (https://www.fanfiction.net/tos/) clearly sign away many rights of the copyright holder:

6. User Submissions and Conduct

B. You shall be solely responsible for your own User Submissions and the consequences of posting or publishing them. In connection with User Submissions, you affirm, represent, and/or warrant that: you own or have the necessary licenses, rights, consents, and permissions to use and authorize FanFiction.Net to use all patent, trademark, trade secret, copyright or other proprietary rights in and to any and all User Submissions and have all necessary consents to collect, use and disclose any personally identifiable information contained or displayed in any and all User Submissions to enable inclusion and use of the User Submissions in the manner contemplated by the Website and these Terms of Service.

C. For clarity, you retain all of your ownership rights in your User Submissions. However, by submitting User Submissions to FanFiction.Net, you hereby grant FanFiction.Net a worldwide, non-exclusive, royalty-free, transferable license to use, reproduce, distribute, display, and perform the User Submissions in connection with the FanFiction.Net Website. You also hereby waive any moral rights you may have in your User Submissions and grant each user of the FanFiction.Net Website a non-exclusive license to access your User Submissions through the Website. You understand and agree, however, that FanFiction.Net may retain, but not display, distribute, or perform, server copies of User Submissions that have been removed or deleted.

(emphasis added)

2/4/2014 #5
RogueMudblood

Cases

The following is an attempt to shed light on how copyright and fan works, or even distribution of the original work, interact. Links are provided in each section.

First, a list of authors whose stance is known on fan works. fanlore.org/wiki/Professional_Author_Fanfic_Policies

1. Marion Zimmer Bradley

According to the fanlore article (fanlore.org/wiki/Marion_Zimmer_Bradley_Fanfiction_Controversy) there isn't a definitive answer on who involved an attorney first. However, referencing a quote in that article, in a fan-published magazine (fanzine) in which Bradley was often quoted, she made the statement

Now, I suppose if I were sick, or exhausted, or overworked, or had writer's block, and happened to come across a fannish story with the gem of a good idea it in, I might write the kid and say, 'Hey, I like that idea, and you probably don't have the skill to make a novel out of it. I'll give you (say) twenty bucks for the idea.' And if the kid should say, 'Hey, wow, I'm flattered, use it for nothing,' I would still say, 'No, I want you to sell it to me, so that you kick if I do something completely different than you want to, or so you won't later think I ripped you off, when you get older.' On the contrary, if the kid says, 'I want to use it in my own private world some day for a story of my own,' then I would just have to start with that idea and work on it till its own author would never know I began there...

In 1992, Jean Lamb wrote a fan fiction titled Masks in which she focused on a specific character of the Darkover series. Bradley asked her if she could use Lamb's ideas in her new novel. Lamb's statement about what happened can be found here, dated 2001: groups.google.com/forum/#!topic/rec.arts.sf.written/JkmjWyZBdbg%5B76-100-false%5D

In 2003, fans were still posting responses to issues with the publication of Bradley's announced novel Contraband (groups.yahoo.com/neo/groups/mzb_newsletter/conversations/topics/204?l=1)

There are other e-mail communications mentioned here: journal.transformativeworks.org/index.php/twc/article/view/236/191

The results of this incident were that Bradley no longer allowed fan fiction of her works, dissolved the fanzine of which she had been a part, and the fandom came down hard on one of their own. Whether she was at fault or Bradley was at fault, this incident in one example of why many publishing houses will not allow writers to read fan works of ongoing series.



2. Stephenie Meyer and Midnight Sun

This is why RTBs and verbatim fanmakes are harmful. In a nutshell, what happened here was that the draft of Meyer's novel, which was to be Twilight from Edward's perspective, was leaked - by fans - and posted - by fans - illegally on the Internet.

Meyer's story: stepheniemeyer.com/midnightsun.html

As the author of the Twilight Saga, I control the copyright and it is up to the owner of the copyright to decide when the books should be made public; this is the same for musicians and filmmakers. Just because someone buys a book or movie or song, or gets a download off the Internet, doesn't mean that they own the right to reproduce and distribute it. Unfortunately, with the Internet, it is easy for people to obtain and share items that do not legally belong to them. No matter how this is done, it is still dishonest. This has been a very upsetting experience for me, but I hope it will at least leave my fans with a better understanding of copyright and the importance of artistic control.

Do make certain to note the statement that reproduction or re-transcription of that draft is illegal.



3. Chelsea Quinn Yarbro

This author is known for taking individuals to court over fan works. (www.leegoldberg.com/chelsea_quinn_y/, www.fanworks.org/writersresource/?action=define&authorid=54&tool=fanpolicy)

The message received by a fan here is sufficient evidence of her position on it, as she issued a C&D in response:

forum.rpg.net/showthread.php?200522-Robin-Hobb-she-don-t-like-the-Fanfic/page14

An interview here (webcache.googleusercontent.com/search?q=cache:iFrX0u5DbaEJ:blogcritics.org/interview-with-chelsea-quinn-yarbro-author/&cd=14&hl=en&ct=clnk&gl=us) gives her position on it in its entirety. You'll note that she makes a comment that she won't write about her characters in time periods sent to her by fans. Why? Because she could potentially be sued over it. The issue between Lamb and Bradley detailed above gives insight as to why she feels this way.

I would also like to point out that though she may not approve of fan fiction, nor does she approve of the statement attributed to Bradley. Her comments here: www.chelseaquinnyarbro.net/faq.html#18, specifically regarding taking another person's ideas, clearly demonstrate that.



4. Anderson v. Stallone

Yes, Sylvester Stallone was sued for writing and producing Rocky IV. The legal decision can be viewed here:

www.kentlaw.edu/faculty/rwarner/classes/legalaspects_ukraine/copyright/cases/anderson_v_stallone.html

What was decided by the court? Anderson didn't have the right to sue over material on which he had no claim to the copyright. Copyright was upheld in that Stallone did not authorize the derivative work Anderson had created, the characters were copyrighted to Stallone and Anderson had no right to use them, and the works were not substantially similar.



5. Castle Rock Entertainment, Inc. v. Carol Publishing Group, Inc.

Quiz books need to be licensed. Why? Because otherwise you can be taken to court for copying too much of the content. It's important to note that the episode dialogue quoted exactly within the book in question only made up 3.6 % (or 5.6, depending on whose calculations you use) of the episode itself.

In Castle Rock v. Carol Publishing, (www.law.cornell.edu/copyright/cases/150_F3d_132.htm) the court decided that the quiz book copied too much of the show.

If a quiz book copies too much, you can be certain that a "fanmake" copies far too much.



6. Marie-Pier Côté

It's just fan fiction, right? I mean, it doesn't matter if you take it, and publish it elsewhere and claim it's your own original work, right?

Actually, yes, it does.

In 2007, a 12-year-old girl decided that she liked a fan fiction written in 2001 and she would pass it off as hers. Not on the internet, where she found it, but instead with a publishing house as an original work.

  • web.archive.org/web/20070326002303/
  • en.wikipedia.org/wiki/Laura_l%27immortelle
  • www.radio-canada.ca/arts-spectacles/livres/2007/09/24/003-laura-immortelle_entente.asp
  • fr.canoe.ca/divertissement/tele-medias/nouvelles/2007/03/27/3845143-jdm.html

Those articles detail the issue for you. Recently, I found that Amazon Canada was still allowing the sale of the stolen work through their marketplace feature. Yes, I contacted the fan fiction author, and no, he was not thrilled about it.

If you look for more articles, you'll even find some that discuss the "similarity" to Highlander. Yet, the creators of that work weren't involved in the suit, and subsequent $24469.32 payment to the publishing house and $5000 payment to the fan fiction author for violation of his copyright.

The US isn't the only country that takes these issues seriously.



7. Nichols v. Universal Pictures Corp.

The text can be found here: scholar.google.com/scholar_case?case=14991934121439658064&hl=en&as_sdt=6&as_vis=1&oi=scholarr

This particular case is a lesson in what can be copyrighted. The basic plot of the pieces is that a Jewish man marries an Irish Catholic woman and hijinks abound thereafter. That's the idea behind the story, and a really pared down summary that no one would argue would be particularly descriptive. Looking at the judges' decision, it's quite clear that they compared at length the two works.

Nichols play seemed to be a commentary on Jews, Irish Catholics, and their animosity toward each other. Universal's movie appeared to the court to be nothing more than low comedy. At a glance (without having viewed either work) it appears to be a question of serious work versus a parody where none of the characters are remotely similar and the stories draw on generalities.

And, to be fair, as both stories involve lovers from rival houses and the interaction of the fathers of each of the lovers, they really seem to be more comedic and less tragic versions of Romeo and Juliet, which isn't exactly unique.



8. Subafilms Ltd. v. MGM-Pathe Communications Co.

The Beatles sued MGM in 1988 for making VHS recordings of Yellow Submarine. This case is highly relevant to the issues this forum is trying to resolve on the site. By illegally distributing the copyrighted work, MGM and worldwide distributors were found liable for $2,228,000, in addition to attorney's fees and litigation expenses.

You can read the case here: nv.findacase.com/research/wfrmDocViewer.aspx/xq/fac.19930217_0045049.C09.htm/qx

That also includes the appeal, where the defendants said that they should not be liable for such an exorbitant amount. Note that the appeal of the fees was denied - they were clearly explained and delineated in the original decision.

At issue in this case was whether MGM had the right to distribute VHS copies since their contract only allowed for "theatrical and television exhibition." It's important to note that they had the right to distribute in some form, where those who copy published and copyrighted material verbatim and post it on this site have no rights of distribution whatsoever.



9. A & M Records Inc et al v. Napster

I'm including this one because the case clearly addresses contributory and vicarious infringement. The case can be read in full here: www.copyright.gov/docs/napsteramicus.html.

This concept is important as it delineates, clearly, the level of liability of not only the site, but also its users. This decision could easily be applied to fanfiction.net.

  • The admins have the ability to edit or remove works on the site.
  • The admins are aware that the site has materials which infringe on copyright, and has not removed those materials, or access to those materials.
  • The infringing material is just as searchable by the admins of this site as it is by its users, and consequently any copyright holders.
  • The site receives revenue from the advertisements which are loaded each time a story page is loaded. There are ads at the top and bottom of each page.

Definitions can be found here: www.chillingeffects.org/dmca512/question.cgi?QuestionID=268, www.chillingeffects.org/dmca512/question.cgi?QuestionID=269

The same ruling which was applied to Napster can easily be applied to fanfiction.net with respect to these elements. Though fanfiction.net would appeal to a Fair Use defense, there is no Fair Use in the exact duplication of copyrighted content.



There are a plethora of cases that shed light on copyright, filed by and against major corporations. You can find a list here:

www.digitalbusinesslawgroup.com/cr-case-law.html

or here:

www.lawschoolcasebriefs.com/LawSchoolCaseBriefs.com/Copyright/Copyright%20-%20Home.html

of a few of them.




Edit to update a link.

2/10/2014 . Edited 6/29/2015 #6
RogueMudblood

News of interest:

Jay Z sued by nephew, December 2013

  • www.vibe.com/article/jay-zs-big-pimpin-lawsuit-play-out-till-2014

Ross & Jackson v. LMFAO, Kia, Kobalt Music, January 2014

  • www.complex.com/music/2014/01/rick-ross-lmfao-lawsuit

Prince drops $22 million lawsuit against fans bootlegging his work, January 2014

  • torrentfreak.com/prince-hits-music-pirates-with-22m-lawsuit-140127/
  • www.starpulse.com/news/Noelle_Talmon/2014/01/29/prince_drops_22_million_lawsuit_agains1
  • www.startribune.com/entertainment/music/242495671.html

Counts & Gold v. Meriwether, 21st Century Fox, et. al., January 2014

  • insidetv.ew.com/2014/01/22/new-girl-sued-for-copyright-infringement/

McLanahan v. Cruise, Paramount, et. al., February 2014

  • www.deadline.com/2014/02/paramount-tom-cruise-brad-grey-jj-abrams-slapped-with-1b-ghost-protocol-copyright-suit/
  • www.theguardian.com/film/2014/feb/07/tom-cruise-sued-1bn-mission-impossible-ghost-protocol-script
  • www.dailymail.co.uk/tvshowbiz/article-2551594/Tom-Cruise-sued-1-BILLION-man-claims-come-Mission-Impossible-Ghost-Protocol-script.html

UFC sues those watching streamed Pay-Per-view illegally, February 2014

  • www.bloodyelbow.com/2014/2/11/5402548/ufc-won-steaming-lawsuit-individual
  • www.bloodyelbow.com/2012/3/13/2868272/ufc-piracy-legal-zuffa-streaming
  • www.bloodyelbow.com/2014/2/11/5400322/ufc-shuts-down-illegal-streaming-site-will-prosecute-mma-news?utm_source=sbnation&utm_medium=mustreads&utm_campaign=blogs

Diece-Lisa Industries v. Disney, February 2014

  • www.hollywoodreporter.com/thr-esq/disney-sued-toy-story-3-679295

Rand Paul, February 2014

  • www.dailykos.com/story/2014/02/12/1277165/-Lawyer-accuses-Rand-Paul-of-plagerizing-lawsuit-against-NSA-No-really

While Prince dropped his suit, he retains the right to re-open at a later date. None of these are settled or litigated yet.

2/16/2014 . Edited 6/29/2015 #7
RogueMudblood

I'm including royalties (as this site could be liable for them based on the content posted on it and the revenue it rakes in from the viewing of that material via the ads) and trademark because of some users misunderstanding of these concepts.

Joan J Buck v. MGM, March 2014 - royalties issue

  • www.hollywoodreporter.com/thr-esq/mgm-sued-home-video-royalties-690395
  • www.deadline.com/2014/03/mgm-home-video-lawsuit/
  • article.wn.com/view/2014/03/22/MGM_Sued_Over_Home_Video_Royalties_For_1965s_Whats_New_Pussy/

BMI v. 69 Taps (bar), March 2014 - royalties issue

  • www.clevescene.com/scene-and-heard/archives/2014/03/21/copyright-lawsuit-against-medina-bar-unauthorized-show-by-local-classic-rock-cover-band-caused-great-and-incalculable-damage

Doyle estate v. Rocket Pictures, March 2014 - trademark issue

  • piratedthoughts.com/doyles-estate-opposes-movie-studios-sherlock-gnomes-trademark/

Disney v. DeadMau5, March 2014 - trademark issue

  • piratedthoughts.com/disney-gears-opposition-deadmau5-trademark/
  • www.hollywoodreporter.com/thr-esq/deadmau5-v-mickey-mouse-trademark-692442
  • www.gigwise.com/news/89822/deadmau5-vs-disney-corporation-to-investigate-djs-mouse-trademark-bid
  • blog.legalsolutions.thomsonreuters.com/law-and-techology/deadmau5-v-disney-bring-popcorn/

Clive Tanaka v. Nicki Minaj, March 2014

  • pitchfork.com/news/54214-nicki-minaj-responds-to-starships-copyright-infringement-lawsuit/

MGM v. Universal, April 2014

  • variety.com/2014/film/news/mgm-sues-universal-over-james-bond-section-6-1201152800/
  • piratedthoughts.com/mgm-sues-nbcuniversal-alleged-james-bond-clone/

Disney, Universal, Paramount, et. al. v. MegaUpload, April 2014 - income from infringement

  • piratedthoughts.com/major-movie-studios-sue-megaupload-founders-copyright-infringement/
  • www.bloomberg.com/news/2014-04-07/disney-and-other-studios-sue-megaupload-over-copyright-claims.html
  • rt.com/news/kim-dotcom-hollywood-studios-041/

Todd Duffey v. 20th Century Fox - case dismissed; this is why you should always thoroughly read your agreements

  • piratedthoughts.com/office-space-actor-loses-lawsuit-flair/


Some users have claimed that because FFN hasn't been sued it can't/won't be. Well, that's patently ridiculous, and here's some evidence for those making such ludicrous claims:

  • variety.com/2014/biz/news/google-and-viacom-settle-copyright-infringement-lawsuit-over-youtube-1201137538/
  • www.nytimes.com/2014/03/19/business/media/viacom-and-youtube-settle-lawsuit-over-copyright.html
  • www.reuters.com/article/2014/03/18/us-google-viacom-lawsuit-idUSBREA2H11220140318
  • www.bloomberg.com/news/2014-03-18/google-viacom-resolve-youtube-copyright-lawsuit.html
  • www.billboard.com/biz/articles/news/legal-and-management/5937673/what-viacom-has-to-show-for-seven-years-of-pursuing

YouTube didn't upload the content to its own site - its users did. One thing that YouTube could use to defend it that FFN can't - Safe Harbor. FFN is made aware - daily - of infringing content, yet refuses to do anything about it.

And if you think you're "safe" because YouTube and Google settled and that if the site is sued, you won't be, you might want to reconsider that position:

  • www.huffingtonpost.ca/2014/02/21/canadian-isp-to-name-subs_n_4831637.html

The scary part of that one is that anyone who reviews the material infringing copyrights might also be found liable for encouraging the infringement.

4/10/2014 . Edited 6/29/2015 #8
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