OTW Fannews: Fanfiction everywhere

Bob Tarantino at JD Supra Law updated a 2010 discussion about fanfic in light of recent developments in Canada. “A discussion of the legal implications of fan fiction would not be complete without mentioning two relevant matters which are not affected by the UGC exception introduced by the CMA: moral rights and trade-mark (or passing off) claims.” Although the UGC exception pertains to copyright infringement, it “has no effect on an author’s potential moral rights claims. And because fan fiction may make use of elements of an author’s creation such as titles, character and location names to which some form of trade-mark protection applies (e.g., Star Wars fan fiction that makes use of character names like Luke Skywaylker (a registered mark in Canada), …there remains the possibility that some form of trade-mark based action could be commenced by the relevant rights-owner.”
Regardless of what’s being discussed in legal circles, fanfic is moving to being both acknowledged and appreciated by perfomers, and seen as a matter worth discussing by the press. A news story on the TCA session for new series The Following began “Shippers, start your engines. Ready your Tumblrs. Start combing the works of Edgar Allen Poe for excellent fan fiction titles.” The reason? “FOX’s new drama “The Following,”from “Scream” scribe Kevin Williamson, is a violent, provocative drama about a serial killer and the man hunting him. But, surprisingly, it’s constructed more like a romance.” And it contains a canon M-M-F threesome. A reporter “confessed that, having seen the first four episodes of the show, she’s rooting for Hardy and Carroll to kiss. Ever the crowd pleaser, Bacon happily grabbed Purefoy’s face and laid a smooch on him.”
Zakia Uddin wrote in The Society Pages about fanfic role playing on Omegle. “We perform identities on social networks, using filters and images, and timelines, and real-time updates – but those identities are never too far removed from those we perform in real-world frames. Roleplaying on Omegle offers a way of getting closer to other writers’ characters in ways which are paradoxically more personal and more immersed in the author’s creation than ever before. While fans wait for their favourite TV series or book series to start up again, they create narratives in collaboration with others which run parallel to their ‘real’ lives. What happens to the division between the fiction and nonfiction when we can experience being someone entirely different every day, within the frames of social networks like Tumblr and Facebook?”

Do you role play? Will you be watching The Following? Write about it in Fanlore. Contributions are welcome from all fans.

We want your suggestions! If you know of an essay, video, article, podcast, or link you think we should know about, comment on the most recent OTW Fannews post. Links are welcome in all languages! Submitting a link doesn’t guarantee that it will be included in a roundup post, and inclusion of a link doesn’t mean that it is endorsed by the OTW.

Anne commented: With all due respect, Mr. Tarantino (cited in the first paragraph above) is a copyright lawyer whose job it is to reassure the media corporations that hire the very expensive law firm where he works to protect their IP. He’s not talking to fans. He’s not interpreting the law for fans. And, it seems in trying to serve his clients, he’s suggesting that they can enforce copyright through non-existent loopholes in Trademark law or Moral Rights. Trademarking a word, or name for a character or item in a movie, does not prevent others from using that word. I can say McDonalds, McDonalds, McDonalds, McDonalds, McDonalds, McDonalds, McDonalds, McDonalds, McDonalds, McDonalds, McDonalds, McDonalds, McDonalds, McDonalds, McDonalds, McDonalds, McDonalds, McDonalds, McDonalds, a zillion times without infringing the restaurant’s TM. I can write stories with people or restaurants or cars or airplanes called McDonalds without infringing their TM. If I want to infringe their TM I have to build a restaurant myself, sell similar food, and call the establishment McDonalds ... and even then, if I was born, "Betty-Jane McDonald" I've got the right to call my hamburger shack McDonalds without it infringing Trademark unless I intentionally try to fool people into believing my shop is a McDonalds franchise.[1] The second possible loophole referred to in the article is moral rights, and moral rights don't work like that. If I take a photograph (derivative work) of artist Michael Snow’s famous sculpture of geese and fingerpaint all over it, or PhotoShop it so the geese are boinking or whatever... that's not infringing his moral rights. His moral rights are not related to the character of geese generally (but watch out for the Geese Anti-Defamation League, they’re tough). Mr. Snow’s rights are linked to the specific geese he sculpted, and as long as I don't mess with those, I'm fine. [2] So essentially the two possible loopholes mentioned for original artists who want to stop derivative works ... aren't loopholes. The bit that’s missing from the paragraph above is that the new Canadian Copyright Act pretty much says, as long as you're not basing your derivative work on an infringing copy, and you give credit to the original artist... you're fine. So download a bootleg copy of LOTR and your LOTR fanfic is infringing. Buy the DVD or see it in the theatre and credit Tolkien and your LOTR fanfic is fine.
Law-nerd is a lawyer practicing in Ontario, who teaches law – including IP Law – part time.
[1] See http://www.mcspotlight.org/media/press/clandonald_jan97.html and http://news.bbc.co.uk/2/hi/8243270.stm regarding McDonalds inability to control restaurants with similar names. [2] See Snow v. The Eaton Centre Ltd., 1982 CarswellOnt 1336, (1982) 70 C.P.R. (2d) 105, for a discussion of moral rights in Canada ... the full text of the case is not available for free online, but I’ve put a copy of it here: http://www.sendspace.com/file/zt0ctj temporarily.
needled_ink_1975 commented: Hey, OTW-- when that comment was in draft, I edited it (y'know, the proof-and-remark kind of edit), and it looked spiffy. But then your compiler mucked it up, and worse, Anne can't edit it so it looks at least readable. What the hell is up with that? Just sayin'... --Nici

Claudia Rebaza commented: Thanks for letting us know about the problems with comment formatting. I checked with our Webmasters and this is what they told me. "Since the comment was made without a user account, we have no way of allowing the commenter to edit the comment. We've discussed ways people can "own" their comments in the future, and are looking into the best approach for that, and weighing the benefits and challenges. For now a user can only comment as an "anon" Drupal user (even if the comment is signed), and thus can't edit. I'll look into the text format issue and test comments on our dev site. We have filters that limit html and fix broken html, but I'm surprised those don't appear on the preview. I wonder how the comment in question looked on preview, since the published comment does not look obviously broken. We can offer to delete the comment if they'd like to repost. If the commenter would like to tell us more details about the formatting they wanted and how it looked different on preview, we could try to address their specific issue."