Should Star Wars Fans Fear Disney Cease & Desist Letters?

May 2, 2013 by 14 Comments
Yoda statue outside Lucasfilm - The Presidio by kennejima from Flickr

Yoda statue outside Lucasfilm – The Presidio by kennejima from Flickr

May 4th is Star Wars Day. May the 4th be with you! In light of this geeky holiday and the fact that I will be speaking about the legalities of fan fiction and fan art at Phoenix Comicon this year, I’ve been thinking about what the impact of the Disney buying Lucasfilm in 2012 will have on Star Wars fans.

George Lucas was known for encouraging fans to create fan art and fan fiction. This is an expression of love for Star Wars and gives fans a chance to connect in new ways. In contrast, Disney is known for sending cease and desist letters when they find that a day care or school shows Disney films or if a child-centered business has a mural of Disney characters painted on the wall.

I tell my fellow geeks who want to create fan art or fan fiction to do their research on whose work they want to emulate to see if the copyright holder will be likely to come after them if they discover what they’ve created. I haven’t heard of any Star Wars fans receiving a cease and desist letter from Disney since they’ve acquired Lucasfilm. I’ve sent a message to Disney corporate office asking about their official policy regarding Star Wars fan art and fan fiction.

If you get a cease and desist letter from Disney for your Star Wars fan fiction or fan art, you could try to make an argument that you’re not committing copyright infringement because what you created is protected by the concept of fair use. This is part of the Copyright Act that permits people to add original and transformative content to existing works. This law protects things like parodies.

Never forget that fair use is a defense, not a permission slip. To make a valid fair use argument, the copyright holder will sue you for infringement and then you’ll have to demonstrate to the court that your work qualifies as fair use. The court will consider four main factors:

  1. Purpose and character of your use of another’s work (Are you transforming the original?)
  2. Nature of the copyrighted work you’re copying
  3. Amount and substantiality of the copyrighted work used
  4. Effect on the market (Is your work a substitute for the original?)

This is somewhat a dangerous quest to take on. The general rule is “Disney never loses” when it comes to legal battles. I know of only person who fought Disney and won in a copyright situation.

If you create fan art or fan fiction or are considering creating original work based on an existing work and need to understand the legal risks that accompany your work, please contact a copyright attorney in your community. You can also check out my book The Legal Side of Blogging: How Not to get Sued, Fired, Arrested, or Killed for my thoughts on fair use.

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Options When Someone Violates Your Creative Commons License

September 13, 2012 by 6 Comments

Portion of C.C. Chapman’s Twitter feed – September 10, 2012

I saw the following tweet the other day by author C.C. Chapman: “Since my photos are licensed under “non-commercial” is this a legal use of my Chevy Volt photo by Yahoo?” The question was followed by a link to an article on Yahoo Auto about GM’s report regarding whether Chevy Volts are being sold at a loss. The photo accompanying the article is C.C. Chapman’s photo of a Chevy Volt that he published on Flickr with a Creative Commons license.

This license requires anyone who uses the image to give C.C. Chapman the attribution, only use it for non-commercial use, and not alter the photo in any way. If the image appeared on Chevrolet’s blog, there would be a strong argument that Chevy uses its blog as a marketing tactic to get people to buy its vehicles; therefore every image on the blog is being used for a commercial use. In that case, the use of the image would have violated the license and C.C. Chapman’s copyright.

However, Yahoo published the article. Yahoo isn’t trying to sell cars. It makes money by selling ads and it may charge advertisers based on the number of hits a page gets. C.C. Chapman could make an argument that Yahoo’s use of his photo had a commercial goal; but Yahoo could fire back that it was reporting the news so its use of C.C. Chapman’s photo was protected by fair use. Yahoo could show that it has a history of news reporting and that its articles are accepted as news, not a marketing ploy.

But let’s say this photo appeared on a commercial website in violation of the Creative Commons license. That’s copyright infringement. What could C.C. Chapman do about it?

  1. Do nothing and be happy about the exposure.
  2. Get the photo removed by sending a DMCA takedown notice.
  3. Send the company a cease and desist letter.
  4. Send a bill with a licensing agreement and a letter that says the publisher has committed himself to paying a licensing fee since he already used the photo.
  5. Sue for copyright infringement.

A lot of people would be happy about the exposure and may opt to do nothing. The downside of doing this is someone else could use your work and make a valid argument that your inaction set a precedent that others could use their work for commercial purposes. You may want to send a letter that offers to license the photo in exchange for the exposure and states if the company doesn’t license it then they have to remove it. That way, you will still get your exposure but you still exert your copyright rights in your work.

If you have questions about how to protect your intellectual property rights, contact an intellectual property attorney (like me) in your community.

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Filed Under: Intellectual Property, Legalities of Blogging, Photography & the Law Tagged With: , , , , , , , , , , , , , , , ,

Phoenix Comicon Badge Art Being Ripped Off

June 21, 2012 by Leave a Comment

Phoenix Comicon 2012 Badge Ruth Carter

Picture from my 2012 Phoenix Comicon Badge

I recently wrote a post about copyright, fair use, and fan fiction and I did an analysis of Marty Freetage’s artwork that was on the badges for Phoenix Comicon this year. It was an awesome parody of Angry Birds and The Avengers. Parodies are generally permissible under the fair use doctrine and I thought Marty’s work was original enough that the copyright holders for Angry Birds and The Avengers probably wouldn’t come after him or Phoenix Comicon for copyright infringement.

Shirt on Gabilife.com

This week I was surprised to see a t-shirt for sale on Gabilife that looks exactly like Marty’s picture. A lot of people on Facebook posted that Gabilife used Marty’s work, changed the background, and stuck it on a shirt. Whoever owns the copyright in the badge art has good reason for believing that their Gabilife is infringing on their work.

This story gets more complicated by Gabilife claims to be a company in India. It raises the question of what are the possible recourse options to make them stop selling the shirt. If they have a presence in the United States, whoever owns the copyright could go after Gabilife for infringement as if they were a US-based company.

Gabilife’s terms state “Pursuant to Title 17, United States Code, Section 512(c)(2), notifications of claimed copyright infringement under United States copyright law should be sent to Service Provider’s Designated Agent.” I searched the agent list on the US Copyright website and I didn’t see a listing for Gabilife or Gabi. That makes me wonder if they just copied someone else’s terms and conditions without registering an agent.

If owned the copyright for the original badge art, I’d register the copyright in the artwork immediately. A copyright holder maximizes their options for recourse if they register their copyright within 3 months of publication or 1 month of learning of the infringement, whichever happens first. If this art hasn’t been registered, that window could still be open.

If the work was registered in time, I’d sue them for copyright infringement if it was a US company. If the company doesn’t do business in the US, there’s probably no point to suing them. If suing them would be pointless, I’d either send a DMCA takedown notice to the email address listed on their site and to their snail mail address. If I wanted to be really bold, I would send them a licensing agreement and a bill that states that they agreed to the licensing agreement by using the artwork without permission.

I wouldn’t expect them to pay me, but it would be validating.

So what is the take away message?

  1. Register your copyrights shortly after creating an original work, especially when you’re as awesome as Marty.
  2. If you suspect someone is ripping off your work, contact a copyright attorney in your community (like me!) to help you strategize and execute your response.

Feel free to connect with me via Twitter, Google+, Facebook, and LinkedIn.
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Filed Under: Geek Law, Intellectual Property Tagged With: , , , , , , , , , , , ,

Fan Fiction, Copyright Law, and Fair Use

May 31, 2012 by 4 Comments

Phoenix Comicon 2012 Badge Ruth Carter

My 2012 Phoenix Comicon Badge - Artwork by Marty Freetage and Bill Farmer Color

I spoke at Phoenix Comicon last week on fair use and fan fiction. I had a great group of people in my audience with who had ideas of turning novels into graphic novels and who wanted to know more about the legalities of things like the Phoenix Comicon badges. This year’s badge featured a parody of Angry Birds and The Avengers.

Speaking at Phoenix Comicon 2012, Ruth Carter photo by Devon Christopher Adams

Speaking at Phoenix Comicon 2012, photo by Devon Christopher Adams

Fair use is a defense against claims of copyright infringement. What generally occurs in these situations is you use someone else’s work in a project, the original copyright owner sues you for copyright infringement, and you respond with an argument that you used the copyright owner’s work but that your use was transformative enough to qualify for protection under the fair use doctrine. The court considers four factors to determine if your use of another’s work is protected by fair use.

  1. Purpose and character of your use of another’s work
  2. Nature of the copyrighted work
  3. Amount and substantiality of the copyrighted work used
  4. Effect on the market

These cases are evaluated on an individual basis. There’s no mathematical equation to determine if you’re protected by fair use. The main factor the court considers is whether your work becomes a substitute for the other person’s work. Parodies are generally transformative enough to qualify for fair use. Let’s look at the fair use factors in regards to the Angry Birds/Avengers badge.

  1. Purpose and character: Phoenix Comicon is a commercial venture, but attendees are paying to attend the con, not specifically to buy the art on the badge.
  2. Nature of the copyrighted work: Both Angry Birds and The Avengers have been previously published. One is a game, the other is a movie. The original copyright owner is generally favored if the work was not previously published.
  3. Amount and substantiality used: The looks of the birds and the Avengers were copied. The looks of both were required for the audience to understand the parody.
  4. Effect on the market: It’s unlikely that someone will seek out Angry Bird art or Avenger art and accept this as a suitable substitute. No one will use this picture as a substitute for the video game or the movie.

Was this badge protected by fair use? Probably, but I’m not a judge and it’s not my call to make.

When it comes to fan fiction, an artist isn’t going to get in trouble if the copyright owner doesn’t know about your work or if they don’t mind that their fans create their own work. If you’re really worried about getting in trouble, you can always ask the copyright owner for permission or a license to use their work.

Fan fiction and fair use are fact specific issues. When in doubt, consult an attorney.

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Phoenix Comicon Preview – Fan Fiction and Copyright Law

May 17, 2012 by 1 Comment

Superman vs. Hulk by JD Hancock

I am so excited for Phoenix Comicon, coming up Memorial Day weekend at the Phoenix Convention Center. It’s the 25th anniversary of Star Trek: The Next Generation, and a lot of the cast is going to be there. I’ve been a card-carrying Trekkie for almost 20 years and The Next Generation was the show that started it all for me.

I’m also super excited that I’ve been invited to speak at Phoenix Comicon this year. My talk is on Thursday evening at 7pm in room 127A of the North Building. The organizers gave my talk a really fancy name, “Adapting Licensed Properties to Comics,” but don’t let that confuse or scare you. I’m going to be talking about how copyright law applies to fan art, fan fiction, and slash fiction. We can also get into issues about sci-fi or comic inspired tattoos, and any other copyright topics we have time to cover.

I think fan art and fan fiction is fantastic and should be encouraged because it makes us keep falling in love with our favorite comics and shows over and over again. But if you create your own sci-fi or comic inspired art work or fiction, you should know about the copyright implications that apply to you. I’m going to talk about how fair use works and I’m going to tell a story about how an independent artist was able to create a Wizard of Oz decorative plate and copyright it. It can be done – if you know how to do it right.

My talk has the benefit of being right before the Semi-finals of the Phoenix Ultimate Geek Smackdown (PUGS). Come see me on Thursday at 7pm and stay for PUGS in room 121 at 8pm!

Here’s the recap:
Who: Me
What: Speaking at Phoenix Comicon – “Adapting Licensed Properties to Comics” – aka Copyright and Fan Fiction
Where: Phoenix Convention Center, North Building, room 127A
When: Thursday, May 24th – 7pm

Filed Under: Geek Law, Intellectual Property Tagged With: , , , , , , , , , , , ,

Ruth Carter’s Speaking Schedule – May 2012

April 30, 2012 by Leave a Comment

Ignite Phoenix #5 by Sheila Dee

Ignite Phoenix #5 by Sheila Dee

May is going to be an exciting month for me because I have four speaking engagements in Phoenix! I’m really excited to get out and talk about intellectual property and social media law. I like to keep my talks casual, interactive, and provide useful information to the audience.  I hope you’ll come out and have fun with me. Here’s where you can find me . . .

Trademark Basics
Wednesday, May 9, 2012 – 6pm
Midweek Mind Tweak – Co+Hoots
This is an interactive discussion about what a trademark is, the strength of attendees’ trademarks, and the benefit of registering your trademark with the U.S. Patent and Trademark Office.

Why You Need a Social Media Policy
Wednesday, May 16, 2012 – 5pm
Midweek Mind Tweak – Co+Hoots
Every company needs a social media policy for their employees, but if you create one that is too broad, you might have to pay over $10,000 for violating the National Labor Relations Act. It’s a problem that is easy to fix, if you know what the law is.

The Legalities of Blogging
Wednesday, May 23, 2012 – 12pm
GP Brownbag – Gangplank Chandler
A spoke a few weeks ago at Gangplank Academy about the legal side of blogging, and they asked me back to present a condensed version as a brownbag discussion. I’ll be presenting the 8 questions you should ask yourself before you publish a blog post.

Adapting Licensed Properties to Comics
Thursday, May 24, 2012 – 7pm
Phoenix Comicon – Phoenix Convention Center
I’m so excited to speak at Phoenix Comicon. The thought fills my little geek heart with joy. I’m going to be talking with sci-fi and comic book fans about copyright issues related to creating fan fiction, fan art, and slash fiction. It’s going to be so much fun!

I hope I get to see you at one or all of my talks!

Filed Under: Employment Law, Intellectual Property, Legalities of Blogging Tagged With: , , , , , , , , , , , , , , , , ,

Copyright Infringement on Pinterest

March 1, 2012 by 21 Comments

My bulletin board (for inspiration) by Monica Arellano-Ongpin

There’s a strong possibility you’re committing copyright infringement on your Pinterest board.

For the sake of full disclosure, I’m not on Pinterest. I don’t need another internet addiction. From what I hear, everyone who’s on it, loves it. Essentially, Pinterest lets you create “boards” where you share pictures of things you like. As you visit various websites, you “pin” things that you like, and add them to our Pinterest boards. Then people who visit Pinterest can see your boards and everything you like.

So Where Does Copyright Come Into Play?
Copyright protection is extended to any original work of authorship that is fixed in a tangible medium. You don’t have to register it with the U.S. Copyright Office to get this protection. When you have a copyright in a picture or other work, you have the exclusive right to copy, distribute, display, and perform the work and to make derivative works based on your work.

If you take a picture, you have the exclusive right to decide where it will be displayed, including on which websites. When someone pins your picture and adds it to their Pinterest board, they likely made a copy of it without your permission. That’s a violation of the Copyright Act.

What About Fair Use?
The Fair Use provision of the Copyright Act allows you to copy a work for the purpose of criticism, comment, news reporting, teaching, or research. Pinning something on your board probably doesn’t qualify as any of these things.

Is Pinning Someone’s Work Ever Ok?
Absolutely! You can pin someone’s work without worrying about being sued if they’ve given you permission to do it. Look for works that come with a Creative Commons license. You may be required to give an attribution to the author when you pin their work. If a work doesn’t have a license, you could always ask the author for their permission to pin their work.

Should I Be Worried about Pinterests Terms & Conditions?
Probably. Have you read them? A woman who is a lawyer and a photographer recently deleted her Pinterest boards after reading them. According to her, Pinterest users agree to some strongly worded terms.  If you are a Pinterest user, you’ve agreed

  • You own or have permission to use everything you pin on Pinterest;
  • That nothing you pin violates or infringes on any third party’s copyright, trademark, or other intellectual property or rights to publicity or privacy;
  • You will defend, indemnify, and hold Cold Brew Labs (Pinterest’s creators) harmless against all claims, damages, and expenses (including legal expenses) related to your use of the site or violations of the site’s terms and conditions; and
  • You accept all the risks related to using the Pinterest site “to the maximum extent permitted by law.”

So, if you and Pinterest get sued for copyright infringement for something you pinned on your board and you lose, you’re required to pay your and Pinterest’s legal fees and the fine assigned by the court. The fine for willful copyright infringement can be up to $150,000. (Hat tip to Cold Brew Labs’ legal counsel on drafting such great terms and conditions!)

What Do I Do If My Copyright’s Being Infringed on Pinterest?
You have three main options when your copyright is being infringed on Pinterest:

  1. Nothing.  If you don’t have a problem with it, do nothing. I think a lot of people select this option because Pinterest exposes their work to a larger audience.
  2. Sue for copyright infringement. This can be a long expensive process, but it’s your best chance for a financial gain.
  3. Send a DMCA takedown notice. If all you want is for your work to be removed from someone’s board, send a Digital Millennium Copyright Act takedown notice to Cold Brew Labs’ statutory agent. The Copyright Act tells you what information you have to include in the notice, or you can find a local attorney to do it for you.  Once Cold Brew Labs gets the notice, they’re required to remove the work that allegedly infringes your copyright.

From what I know of Pinterest, I suspect copyright infringement is occurring on most Pinterest boards. You have to decide for yourself how much risk you’re willing to take. If you need help assessing the legal risk related to your Pinterest boards, contact a copyright attorney in your area.

UPDATE (3/26/2012): Pinterest announced its new terms of service will become effective on April 6th. They allegedly make it easier to report copyright infringement.

Filed Under: Intellectual Property, Photography & the Law Tagged With: , , , , , , , , , , , ,
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