The OTW believes that fanworks are creative and transformative, core fair uses, and will therefore be proactive in protecting and defending fanworks from commercial exploitation and legal challenge. This help will not be limited to those fans or projects directly connected with OTW.
Our work includes:
Davis v. Electronic Arts
- Amicus Brief, Davis v. Electronic Arts (PDF); served on January 30, 2015
OTW Legal, together with the Electronic Frontier Foundation (EFF), filed an amicus brief seeking rehearing in the case of Davis v. Electronic Arts. The case concerns the relationship between the First Amendment, which guarantees the right to free expression, and states’ right of publicity laws, which limit how the names, likenesses, and personas can be used. The brief argued that the U.S. Ninth Circuit should rehear the case because its decision in the case struck the wrong balance, to the detriment of creators wishing to make expressive works about real people. Under the existing decision, the brief argued, “an artist creating a work about a real person has little idea how a court might evaluate liability for the use of that person’s likeness, particularly if she cannot be certain which jurisdiction’s rules might govern the analysis.” The brief asked that the court re-hear the case in order to protect artists who want to create realistic portrayals of real people, and to shield creative expression from overreaching publicity rights.
Petition to the Copyright Office in favor of a DMCA exemption for makers of noncommercial remix, 2014-2015
- Comments of Electronic Frontier Foundation and Organization for Transformative
Works (PDF); served February 6, 2015
- Petition to the U.S. Copyright Office to Renew DMCA Exemptions (PDF); served on November 3, 2014.
- Petition to the U.S. Copyright Office to Renew and Expand DMCA Exemptions (PDF); served on November 3, 2014.
The OTW, together with the Electronic Frontier Foundation (“EFF”), filed two exemption requests with the U.S. Copyright Office. The petitions seek renewal of the exemptions that the OTW helped secure in 2009 and 2012, which permit vidders to break encryption on audiovisual content provided via DVDs and online distribution services for the purpose of making noncommercial, transformative vids. In addition to seeking renewal of those exemptions, the OTW’s petition also seeks expansion of the exemptions to include Blu-Ray discs.
Submission to the Australian Government’s Online Copyright Infringement Discussion Paper
- Comments submitted by the OTW (PDF)
OTW Legal, jointly with Creative Commons Australia, contributed a Submission to the Australian Government’s Online Copyright Infringement Discussion Paper on September 5, 2014, recommending against a proposal by the Australian government. The proposal expanded the definition of “authorisation” liability for internet service providers. This would mean that, even if they couldn’t stop individual infringements by individual users, they could have to change how their services operated, such as by shutting off internet access for accused infringers or by filtering users’ activity.
Capitol Records v. Vimeo
- Amicus Brief, Capitol Records v. Vimeo (PDF); served on July 30, 2014.
The Organization for Transformative Works partnered with the Center for Democracy and Technology, New Media Rights, the Electronic Frontier Foundation, and Public Knowledge to file a brief which asks a federal appeals court to block record labels' attempt to thwart federal law in Capitol v. Vimeo—a case that could jeopardize free speech and innovation and the sites that host both. Specifically, the court is addressing what constitutes “red flag” knowledge of infringing material that would require the hosting service to remove the material even without receiving a takedown notice. In the brief, the OTW and its allies argue, among other things, that the standard set by the trial court would place unreasonably high demands on sites that host user generated content and would chill valuable speech protected by the fair use doctrine.
Cindy Lee Garcia v. Google, Inc.,YouTubeLLC, et al., and Nakoula Basseley Nakoula
- Amicus Brief, Garcia v. Google (PDF); served on November 25, 2014.
On November 12, 2014, the court ruled that its previous decision was void, and ordered that the case would be re-heard by the entire court—not just a three-judge panel—in December. The OTW filed a new amicus brief in the case, expanding on the arguments we made in our original brief.
- Amicus Brief, Garcia v. Google (PDF); served on April 14, 2014.
The Organization for Transformative Works partnered with Floor64 (the operator of TechDirt) to file a brief asking the court to reconsider its decision with an eye to the fact that, although the decision may create a good factual result in this particular case, it makes terrible law that will harm freedom of expression on the Internet. The case involves the scope and application of the safe harbor provisions of the DMCA and section 230 of the Communications Decency Act, which together prevent content hosts — like YouTube, the AO3, and many others — from being liable for what their users post.
Comments to the European Commission
- Comments submitted by the OTW (PDF)
In February 2014, the OTW's Legal Committee registered the OTW in the European Union's Transparency Register and filed a submission to the European Commission in response to its call for comments concerning possible EU copyright reform.
Stephanie Lenz, v. Universal Music Corp., Universal Music Publishing, Inc., and Universal Music Publishing Group
- Amicus Brief, Lenz v. Universal (PDF); served on December 13, 2013.
The Organization for Transformative Works partnered with Public Knowledge and the International Documentary Association, represented by the Stanford Fair Use Project, to file this brief. It explains that unfounded allegations of copyright infringement harm fair use and lawful speech by documenting persistent abuse of DMCA notices. The statute requires the sender of a takedown notice to affirm under penalty of perjury that the use is not “authorized by law,” and punishes misrepresentations. As a result, we argue, the law requires rights holders to form a good faith belief about whether a use is fair before issuing a notice under the DMCA—and should punish those who take a “shoot first and ask questions later” approach as Universal did for Ms. Lenz’s video.
Comments to the PTO/NTIA
- Comments submitted by the OTW (PDF)
In October 2013, the U.S. National Telecommunications and Information Administration (NTIA) and the U.S. Patent and Trademark Office (PTO) sought public comments on copyright policy issues, including the legal framework for the creation of remixes. Our attorneys used stories submitted by fans to explain to these agencies, which are likely to propose new legislation about copyright, why any change in copyright law should favor freedom to make transformative works.
OTW Legal staffer Rebecca Tushnet also appeared on a panel on Legal Framework for Remixes which was asked to testify to these agencies in connection with the same public comment process on December 12, 2013. (She begins to speak at :33 minutes).
OTW Legal chair Betsy Rosenblatt has represented the OTW at a Green Paper Roundtable working group to develop a legal framework for the creation of remixes. Her appearance on July 29th can be viewed starting at 1:56:00 of the morning video.
Fox Broadcasting Company, Inc., Twentieth Century Fox Film Corp., and Fox Television Holdings v. Dish Network L.L.C. and Dish Network Corporation
- Amici Brief, Dish v. ABC (PDF); served on January 24, 2014.
- Amicus Brief, Fox vs. DISH (PDF); served on January 24, 2013.
The Organization for Transformative Works submitted an amicus brief, joined by the Electronic Frontier Foundation and Public Knowledge arguing that "Copyright law does not grant copyright holders like Fox absolute control over the use of their works. The district court followed clear precedent and sound policy when it found that users of Dish’s Ad Hopper do not trespass on Fox’s exclusive rights, that Dish would not likely be liable for its customers’ uses, and that Fox suffered no irreparable harm. This Court should affirm the district court’s order, but clarify that Dish’s intermediate copying is a fair use."
Petition to the Copyright Office to Renew the DMCA exemption for makers of noncommercial remix, 2011 - 2012
- Comment of the Electronic Frontier Foundation (PDF), submitted December 2, 2011. OTW members Rebecca Tushnet, Rachael Vaughn, and Francesca Coppa worked with the EFF to submit a proposal to renew and expand the DMCA exemption for Noncommercial Remixers.
- Reply Comment on behalf of the Organization For Transformative Works (PDF), in support of the EFF's proposed DMCA exemption for vidders and other remix artists; submitted March 2, 2012. OTW Legal staff members Rachael Vaughn and Rebecca Tushnet worked with members of Legal and vidding to produce a Reply in support of the EFF's proposal; the EFF also submitted their own Reply Comment (PDF) in support of various exemptions, including the exemption for Noncommerical Remixers.
- A revised Test Suite of Fair Use Vids including a comparison of DVD-ripped footage and screen captured footage.
- Francesca Coppa, Rebecca Tushnet, and Tisha Turk testify before the Library of Congress, June 4, 2012; Tisha Turk presents the exhibits in our first Image Gallery demonstrating quality differences between DVD-ripped and screen captured source.
- Reply to the DVD CCA's exhibits supporting screencapture, submitted August 2, 2012; see the OTW's own second set of exhibits in our second Image Gallery.
Ryan Hart vs. Electronic Arts, Inc.
- Amicus Brief, Ryan Hart vs. Electronic Arts, Inc.; served on May 23, 2012.
The Organization for Transformative Works submitted an amicus brief, joined by the Digital Media Law Project and the International Documentary Association and ten law professors, arguing that EA's use in a video game of college football players' data/descriptions is covered by the First Amendment. EA and the public have a strong First Amendment interest in being able to incorporate factual information - like a player's height, weight, jersey number, and team - into creative works.
Salinger v. Colting
- Amicus Brief, Salinger v. Colting (PDF); served on August 3, 2009.
The Organization for Transformative Works was asked to collaborate with the American Library Association, the Association of Research Libraries, the Association of College and Research Libraries, and the Right to Write Fund on an amicus brief in the Salinger/60 Years Later case. The OTW's Rebecca Tushnet and Casey Fiesler collaborated with lawyers from Stanford's Center for the Internet and Society and the UC Berkeley School of Law to produce the brief.
Petition to the Copyright Office in favor of a DMCA exemption for makers of noncommercial remix, 2008- 2009
The EFF applied to the Library of Congress for a DMCA exemption to allow the extraction of clips from a DVD for inclusion in noncommercial remix videos, such as fanvids, that are found to be fair use. The OTW (and many vidders) assisted in the preparation of this application.
- Reply Comment of the Organization of Transformative Works , (PDF, or view as HTML) in support of the EFF's proposed DMCA exemption for vidders and other remix artists; submitted February 2, 2009.
The Organization for Transformative Works has submitted a reply comment in support of the EFF's proposed DMCA exemption for vidders and other noncommercial remix video artists.
- OTW Response To June 22 Supplemental Questions re: DVD And Screen Capture (PDF, or view as HTML); submitted July 10, 2009.
On June 22, the Copyright Office requested further information from the OTW and other groups that testified during the DMCA Anticircumvention Hearings on May 6-8. (These hearings were designed to entertain testimony in favor of and against DMCA exemptions for educators beyond film studies professors (including K-12 teachers), documentary filmmakers, and vidders and other noncommercial remix artists.) These supplemental questions were about DVDs and screen capture software.
- Joint Supporters Response To August 21 Supplemental Questions On Proposed DVD-Related DMCA Exemptions (PDF, or view as HTML); submitted September 8, 2009.
The Copyright Office sent around a second set of supplemental questions on August 22, 2009. The OTW collaborated with the Electronic Frontier Foundation, a number of library associations (ALA, AALL, ARL, ACRL), film and media studies professors, and documentary filmmakers and their organizations, on a joint reply. We also co-wrote a separate response with the EFF specifically to address the particular needs of vidders and other remix artists; see below.
- OTW & EFF Response To August 21 Supplemental Questions, Specific To Noncommercial Video Remix Creators (PDF, or view as HTML); submitted September 8, 2009.
- A Test Suite of Fair Use Video: A selection of fan videos with commentary offered in support of our proposal for an DMCA exemption for noncommercial remixers.