OTW Fannews: Fanworks and the public domain

  • Posting on Mondaq, a legal, regulatory and financial commentary site, law firm Duane Morris offered advice to people about paying more attention to Terms of Service language at the sites where they post. “Smash Pictures produced a porn/adult movie entitled Fifty Shades of Grey: A XXX Adaptation. A predictable result was a lawsuit by Fifty Shades Limited and Universal City Studios, who own rights to the book franchise and movies respectively…the defendants raised an intriguing argument in Counterclaim, namely that the copyrights in the Fifty Shades of Grey books are invalid — and free for everyone to use — because ‘as much as 89% of the content of the allegedly copyrighted materials grew out of a multi-part series of fan fiction called Masters of the Universe based on Stephanie Myer’s Twilight novels’…So a distinctive point in the case was the role of the fan fiction site’s user terms of service. Such contracts are a kind of Super-IP right in which the normal boundaries of copyright can be expanded and rights apportioned.”
  • OTW Legal Committee staffer Heidi Tandy said the following about the case: “The current Terms of Use at Fanfiction.net [www.fanfiction.net/tos/] does not state that any uploaded work loses its copyright, is placed in the public domain or is abandoned by the writer; accordingly, we do not believe that merely uploading a fic to FFN places it in the public domain, given that an author has to take specific steps when abandoning the copyright in a work.”
  • Legal staffer Rebecca Tushnet pointed to details from another case involving commercial but transformative use. “In one recent case, the plaintiff, Keeling, created a parody version of the film Point Break, [called] ‘Point Break LIVE!’ The parody stemmed from recreating the storyline of the original film — about an FBI agent who goes undercover to take down a group of surf-loving bank robbers — using amusingly unrealistic props and staging, and putting an unrehearsed audience member in the key role of the FBI agent…The lawsuit began when the defendants, after a dispute with [Keeling], started staging their own version of ‘Point Break LIVE!’ They obtained a license from the owners of the rights to Point Break, but none from Keeling, and argued that she had no valid copyright because her version was an unauthorized infringing work. The court, and a subsequent jury, found that she had established that her version was fair use. Therefore it had its own independent copyright, which the defendants infringed.”
  • Creativity Tech posted Fan Fiction and the Limits of Copyright and referred fans to the OTW. “If you’re confused, rest assured that you’re not the only one. The rules related to fan fiction and ‘fair use’ are not hard and fast. They’re fluid and uncertain. As I said before, they’re also determined on a case by case basis. If you’re a fan writer, just be careful about how and where you distribute your work. You might also be interested in consulting the Organization for Transformative Works. The organization offers information and resources.”

If you’ve got your own cases of fair use and parody works to share, write about them in Fanlore! Contributions are welcome from all fans.

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