OTW Fannews: No Place to Hide

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  • AdNews discussed the use of YouTube fandoms as a marketing bonanza. “The quality of talent on display, and the reaction of fans got the point across about the premium content YouTube has to offer…Stuart Bailey, chief digital officer at OMD Australia, believes that, ‘long gone are the days when clients would associate YouTube with skateboarding cats and other such content. It now has content credential in spades. Google certainly flexed their ‘influencer’ muscles and showed that some of their YouTube talent are stars in their own right, with engaged and loyal audiences – some queuing from 6am to catch a peek of their favourite YouTube stars,’ Bailey said. ‘The trick will be how to tap into that talent to not only communicate with a brand’s customers and consumers but to add value and customised experiences.'”
  • Comic Book Bin asked whether fan films should be crowdsourced. “I believe that copyrights holders should be tolerant of fan films and fan fiction but to a limit. When fan fiction and fan film creators earn money from the unlicensed properties they exploit, that is a problem. More than voluntarily breaching the rights of copyrights owners, they earn revenues from properties they have no right to exploit. If you want to make a Batman film, do it on your own, bear all the costs. Use it as a portfolio piece. But to go out of your way to ask people to fund your Batman film is wrong. You don’t own Batman.”
  • MTV.com spoke glowingly about erotic fanfiction competitions and noted it’s an expanding business. “If you’re not in San Francisco or New York, you can still observe the NSFW madness from afar. Shipwreck also has a regular podcast where they post recordings of their live show, as well as a Tumblr where you can read previous works — and last night they just announced they’ll be publishing a book sometime next year.”
  • QSR promoted a Dairy Queen competition for fans. “Along with a new television advertising campaign dedicated entirely to Fans, both the Random Acts of Fandom Giveaway and the ad campaign showcase a wide variety of DQ Fans professing love for their favorite people, places, and things including vintage cars and the perfect nature hideout.”

What efforts to tap the fandom market have you been seeing? Write about them 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 Fannews post, and inclusion of a link doesn’t mean that it is endorsed by the OTW.

OTW Fannews: Becoming the Norm

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  • Variety gave the entertainment industry a heads up on a critical fair use ruling in a case involving viral videos. Fair use is the key copyright provision protecting fanworks in the U.S. “‘Equals Three’s use of Jukin’s videos is admittedly commercial. Nevertheless, the commercial nature of the use is outweighed by the episode’s transformativeness,’ Judge Stephen V. Wilson of the U.S. District Court for the Central District of California wrote in the Oct. 13 decision. What makes the use ‘transformative’ is not clear-cut, the judge noted: ‘Determining whether Equals Three’s episodes parody Jukin’s videos is a difficult and nuanced task.’ But Judge Wilson ruled that even if Equals Three’s episodes are not parodies, the episodes comment on or criticize Jukin’s videos and are therefore allowable under fair use.”
  • An article in The Atlantic discussed the importance of the Google Books decision for fair use. “This isn’t only good news for fans of Google Books. It helps makes the legal boundaries of fair use clear to other organizations who may try to take advantage of it, including libraries and non-profits. ‘It gives us a better senses of where fair use lies,’ says Dan Cohen, the executive director of the Digital Public Library of America.” What’s more “Experts say that the Supreme Court is unlikely to hear an appeal, because so many district court judges, and two different federal circuits, have found themselves so broadly in agreement about the nature of transformative use online.”
  • Another writer in The Atlantic noted that transformative use is everywhere in both authorized and non-authorized forms today. “The question for authors to consider in this brave new world of mimicry, both professional and otherwise, is to what extent they consider their characters to be theirs and theirs alone. For most, it isn’t something that will become an issue during their lifetime: Copyright law stipulates that books only enter the public domain 70 years after the death of the author, even if most fanfic writers aren’t limited in terms of what they can post online.”
  • Digital Book World proposed that publishing focus on the content not the wrapper when producing work. “[F]an fiction has quite possibly become the biggest sleeper hit of the digital age. According to some estimates, around a third of all the content posted on Wattpad and Tumblr is created by fans. As a commercial proposition, fan fiction is embryonic, but I think publishers have a lot to learn from its speed and agility. Fan fiction stays close to its audience (indeed, creator and consumer are often indistinguishable), it centers on recognizable brands and it iterates quickly. And most importantly, it’s platform-neutral. The wrapper—whether this is a Tumblr post, Wattpad story or ebook—isn’t the end product; it’s a means of transmission.”

What do you think have been the key moments in the spread of fanworks? Write about them 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 Fannews post, and inclusion of a link doesn’t mean that it is endorsed by the OTW.

OTW Legal Contributes to Victory in Lenz v. Universal

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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 legal@transformativeworks.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.