September got off to a pretty spiffy start for us here at the OTW with an article from Inverse that talked about why people make fanworks and what the OTW does in fandom. (While the OTW gives many interviews, most resulting publications don’t actually talk about our mission, so this was exciting for us.) “Very often, fans come into [creating] fanwork because they’re not finding what they’re looking for, either from the show itself or from existing fan works,” the article says, adding that “what many creators have in common is the desire to shape their preferred narratives.” The article focuses on LGBTQ+ elements as a primary trait of many fanworks, and includes testimonials from fanworks creators about how “there’s just not a lot of mass culture that’s made for [LGBTQ+ people] and [their] tastes.” Is that why you create fanworks? Let us know in the comments!
OTW Legal wants your stories!
Over the years, OTW Legal has spoken for fans and fanwork creators in comments to governments around the world including the U.S., the E.U., Australia, and South Africa. And we want your help to keep doing that! One topic that many governments around the world want to know about is the impact of copyright “notice and takedown” regimes. Notice and takedown regimes are part of the TPP and the laws of many countries, including the U.S. Digital Millennium Copyright Act.
Most recently, the European Commission has asked for comments on how intellectual property (IP) enforcement is working worldwide, with a particular interest in notice and takedown systems and “graduated response” (also sometimes known as “three-strikes”) systems that restrict people’s ability to post content after they receive multiple takedown notices.
So we want to collect stories from fans worldwide on how notice and takedown is impacting fandom. Have you, or anyone you know, been the subject of a takedown notice? What did you do about it? How did it feel? Have you had a fanwork of your own removed, or has a work you loved been removed? Tell us about it! Have you ever been concerned about notice and takedown, “graduated response,” or other potential consequences of posting fanworks? Let us know!
Please submit your stories about fanwork takedowns by February 28. We’ll use your stories to support our legal advocacy work.
Next month’s International Fanworks Day event will include a call for fan activism. Let us know that you took part in letting world governments know that fanworks are important to you.
Way back in 2007, Stephanie Lenz posted a 29-second video on YouTube of her 18-month-old son dancing in her kitchen. Playing in the background was Prince’s song “Let’s Go Crazy.” Little did Lenz know that eight years later, she’d be responsible for an important development in copyright fair use law.
Universal, which owns the copyright to the Prince song, demanded that the video be removed from YouTube by issuing a “takedown notice” under the U.S. Digital Millennium Copyright Act. But the law is clear: in order to issue a takedown notice for an allegedly infringing use, the copyright holder must swear or affirm under penalty of perjury that the use is not “authorized by law,” and Lenz’s transformative, non-commercial video appeared to be a clear-cut example of fair use–in other words, it was authorized by the law. With help from the Electronic Frontier Foundation, Lenz fought back against Universal’s overreaching demand.
It has been a long road since then, but Lenz has not only prevailed–she’s helped confirm important principles of law. Lenz won her argument that the video was fair use, and in 2013, before the U.S. Ninth Circuit Court of Appeals, Lenz argued that Universal’s failure to consider fair use constituted “bad faith” and that Universal should be punished for trying to have the video taken down. At that point the OTW, with help from allies the Stanford Fair Use Project, Public Knowledge, and the International Documentary Association, submitted an amicus brief to the court explaining that unfounded allegations of copyright infringement, like Universal’s, are abuses of the DMCA that harm fair use and lawful speech. We argued that the law requires rights holders to form a good faith belief about whether a use is fair before issuing a takedown 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.
In agreeing with Lenz and the OTW, The Ninth Circuit Court of Appeals stated some very important principles, chief among them that “[f]air use is not just excused by the law, it is wholly authorized by the law.” This is something we have been saying for a long time: U.S. copyright law gives people an affirmative right to engage in fair use of copyrighted material. Other courts have said that fair use is a lawful use of copyright, and fair use means there is no copyright infringement.
In the Lenz case, the court said that explicitly: fair use isn’t “infringement that’s excused” — it’s a use that was never infringement in the first place. The court went on to hold that a copyright holder must consider whether a use was fair before issuing a DMCA takedown notice, and failure to consider fair use constitutes punishable bad faith. The court quoted the OTW’s brief in its explanation that it may be possible to consider fair use while still using computer algorithms to search for infringement, but that it will require the computer algorithms to be tailored for fair use by, for example, sending a takedown notice only where their algorithm finds entire works with completely matching audio and video tracks.
This ruling is great news for fans and transformative creators, and we thank our allies who worked tirelessly to make it happen — but our work is far from done. The Lenz ruling is good, but we believe it doesn’t go far enough to protect fair use. It only requires copyright holders to form a “subjective good faith belief” that the use isn’t fair use, which leaves too much room for copyright holders to issue takedown notices that are objectively wrong. Most people who receive improper takedown notices or notices based on bad decisions don’t have the backing of a powerhouse like the EFF – or know that they’ll have the support of the OTW – to help them fight back, and they shouldn’t have to fight in the first place. DMCA takedowns can be frightening, especially when they’re unwarranted and unjustifiable. And even when someone’s right, fighting is hard: this fight took eight years. We hope the next fights are easier, but we know they might not be. We will continue to fight for fair use and help fans who receive unfair takedown notices. If that’s you, contact us at firstname.lastname@example.org.
For a copy of the OTW’s December 13, 2013 brief, see the OTW Legal page. For more information about the case and the ruling, see the EFF’s site and discussion of the case and ruling and Legal Staffer Heidi’s post about the ruling.