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Washington Irving’s signature boldly proclaims his support for an international copyright law to protect American author literary works from piracy. What would scare the creator of the Headless Horseman? Seeing his classic The Legend of Sleepy Hollow available free online! Happy Halloween, tumblrs!

Petition of Washington Irving and others supporting an international copyright law (SEN27A-G8.1), 2/1842, Records of the U.S. Senate

University of North Carolina steals photographer’s work, claims it could not have known photo was not free to use

“I felt like their counsel’s comments were a backhanded way of saying to me: ‘you shouldn’t have put your work on the internet if you didn’t want it used.’”Justin Cook

http://www.dvafoto.com/2014/10/university-of-north-carolina-steals-photographers-work-claims-it-could-not-have-known-photo-was-not-free-to-use/

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Yesterday, we reblogged someone’s post where she was responding to a personal Ask regarding her selling ebooks of her Les Miserables -inspired fanfic, and we learned overnight that the OP (not the anon who asked a horrible question) was upset that people were reblogging her response, so as of this morning, we’re taking down our reblog, because she’s asked for people to stop reblogging it. 

However, we feel that the Anon’s question and various responses to it cover important legal topics relating to public domain works and fanfic, so we’re reposting those below, along with an update inspired by the image above. 

cesperanza:

astolat:

cassandrexx:

"The writer as a writer has but one heir - the public domain." - Victor Hugo

If you honestly think that Hugo, who wrote about Fantine with so much compassion, would object to a woman living in poverty doing whatever she damn well has to do to support herself, I happen to have this convenient Brick to bash you over the head with.

Er. Wait. What? I read this whole thing sighing, and then got to the end. Is this fucking anon SERIOUSLY writing about LES MIS fanfic? The Les Miserables that was written in 1862 and has been out of copyright for a million years? The Les Miserables that THE PEOPLE WHO WROTE THE MUSICAL used and took LOADS of people’s money for? That Les Miserables? 

You can self-publish your Les Mis fanfic ON AMAZON (or the less problematic ebook retailer of your choice) at a 70% royalty and for that matter sell the movie rights if you want to, it is 100000% yours and that is neither immoral nor unethical.

In fact, you can take the ENTIRE TEXT of Les Mis, format it, slap a cover of your own design on it, turn it into an ebook, and publish it on Amazon. FOR PEOPLE TO PAY YOU CASH MONEY. YES THAT IS LEGAL AND TOTALLY OKAY. 

Writing stories with someone else’s characters IS NOT IMMORAL. Writing stories with someone else’s characters that are out of copyright IS NOT EVEN A COPYRIGHT VIOLATION, that is WHAT PUBLIC DOMAIN MEANS. It means after the copyright period is over, FAIR GAME FOR ANYBODY. 

HOLY FLYING SPAGHETTI MONSTER what the hell *weeping in corner*

Not illegal, not immoral, and not even out of character. :D 

Reblogging because astolat, cassandrexx@ and cesperanza speak the truth. 

As attorneys with a focus on intellectual property, we think it’s very problematic that anyone would say that it’s “disgusting and unfair” to take public domain characters and make money off of them. 

It’s ethical - and has been since before the time of Shakespeare, who wrote of real people (yes, Shakespeare wrote RPF and arguably RPS) as well as others’ fictional characters. It was part of the culture of Greek playwrights, it’s why the story of Mulan spread far and wide, and it’s why the stories in Grimm’s Fairy Tales and 1001 Nights are still told today. It’s why we, as a culture, have most everything Disney, Phantom of the Opera, Wicked (the book and the play), Shakespeare In Love (the movie and the play) and yes, every version of Les Miserables that was not the billion-word novel by Victor Hugo - including some sequels in 1995 and 2001. 

It’s the 2001 sequel we’re thinking about today, because the case that was filed by a descendent of Victor Hugo’s explains exactly why anyone can use the characters and/or story from Les Miserables in any way they want. Sociétié Plon et autres v. Pierre Hugo et autres, 04-15.543 Arrêt n° 125 (Jan. 30, 2007). While there is obviously no copyright left in any descendent of Hugo’s, his great-great-grandson claimed that said descendants still had moral rights (droit moral) in the characters Hugo created. 

Pierre Hugo said much what the Anon said: 

"I don’t mind adaptations and many are very good but this book is not an adaptation. I have read it and it is not badly written but the publishers used Victor Hugo’s name and the title Les Miserables as a commercial operation … It was nothing to do with literature, they were just trying to make money."

The French court said that since the copyright in the work had long ago expired, while an adaptation or sequel might impact Hugo’s moral rights, because the term of copyright had expired, that was immaterial. It didn’t matter. 

And the court also noted as cassandrexx did that Hugo was not opposed to adaptations of his work. 

In other words, if something is in the public domain, the original creator’s moral rights have expired too, and anyone can adapt it, transform it, film it, rewrite it, make an Emmy-winning YouTube video series based on it, translate it, abridge it, slap a shiny cover on it, and after doing any or all of the above and more, one can sell it. 

ETA: The image above is the cover of A Little In Love, a book that will be published in October, 2014 in the UK by Chicken House books, written by Whitbread prize-winning author Susan Fletcher. The info page says the obvious - it’s “Inspired by the Victor Hugo literary classic” and also says that it’s inspired by “the bestselling musical and multi award-winning movie,Les Miserables.” The title comes from Eponine’s dying words in the book, “And then, do you know, Monsieur Marius, I believe I was a little in love with you.” 

It’s a published novel, by an award-winning author - and it’s a coincidence that it was tweeted today, because it illustrates how wrong and malicious the Anon was to a fandom writer yesterday. Fletcher is taking money for writing fanfiction using characters that are not hers. And that’s completely okay, because the characters and story are in the public domain. Nobody owns the copyright in them. There should be no ethical issue for an author to get paid for writing a story that is based on public domain characters. As the 8th Circuit in the US said earlier this year: 

When a story falls into the public domain, story elements—including characters covered by the expired copyright—become fair game for follow-on authors.

Follow-on authors - aka fanfic writers - are allowed to do anything they wish with a story that has fallen into the public domain, They can use story elements including characters. Storytelling just works that way.

We are sure anons who want to bitch about something and be cruel for no reason will not take this as a reason to stop attacking people for doing something legal and ethical under all modern entertainment/publishing industry standards, but we really hope they do. 

Art theft vs. Sharing and basic copyright

Hey everyone, 

Even though the issue with the art thieves is not yet resolved, I got a few messages that made me think this post might be useful/necessary for all you artists out there. It’s just a short summary but hopefully it will clear up some questions.

What’s copyrighted on the internet? 
Almost everything is copyrighted. The moment a person creates, they own the rights to whatever they created, be it art, writing, photography, design etc. (exception: Work made for hire and others listed below.)

What can I use?
•Everything you make yourself.
•Things the creator explicitly encourages to use or share. (No comment, note or reply does NOT mean it’s okay to use!)
•”Free art”. There’s specific websites that offer art for free use. make sure it’s trustworthy and not a scam. (stock, textures, photoshop brushes are very popular to offer for free)
• art you purchased the rights/licence to. 
Public domain. (Rights have EXPIRED. Example: Works of Shakespeare, Beethoven. Does not mean things that are publicly available on google!)

Sharing my work (careful: every artist is different!)
• sharing my stuff is okay, as long as my website/watermark/signature is not removed and the image is not tampered with in any way.
• an extra link back is highly appreciated
• Please do not use my art in any controversial context (politics, ideologies, religion etc) without getting my permission.
• asking beforehand for permission is really polite and appreciated!

Theft 
• art is used in ads, promotion, print, and sold, or used to make sales. (all commercial uses are illegal)
• art is modified and tampered with. (watermark slapped on/removed/image is traced)
• artist is not credited, or credit (a link in description for example) is removed. This is not theft per say, but highly disrespectful. It makes the image get lost on the internet and is the reason people like to give the excuse “But I found it on Google!”

Remember also that you  always keep ALL your rights to your work  unless you write/sign a contract and give away or sell your rights to someone. 

Hope this helps some of you out there. Know your rights! 

Useful links. ◘◘◘, ◘◘◘, ◘◘◘, ◘◘◘

image

image

believe that because titles cannot be copyrighted, you are fine to use titles of books or movies in your novel. Quotes or appearances of characters is not so fine. I provided a list at the bottom of various topics on copyright and trademark infringement that will pertain to both your questions, and FAQs on fair use and public domain. And I hope our followers with legal expertise will chime in as well. 

Having said that, I would be careful how you use contemporary pop culture in your fiction. When things are popular in a given moment, it is difficult to predict how long it will stay popular, and if it fades, your work can become extremely dated. I have nothing against John Green or Rainbow Rowell, but they are both very “now” authors. If you were to use classic authors like Austen or Hemingway, or J.R.R. Tolkien - those have shown they can stand the test of time. And personally, I think J.K. Rowling has claimed that status considering her last HP book was published 7 years ago (last film 3 years ago), and the HP popularity has remained persistent despite many other popular fantasy and sci-fi series that have come out since.

There is no cut and dry rule of what makes a work “dated,” and this is certainly my own opinion and not necessarily a rule of writing. But just consider your choices carefully, regardless if it’s a popular book, movie, or band. Now, here are those links I promised:

Public Domain FAQ

Fair Use FAQ

When Do You Need to Secure Permissions?

Copyright in Fictional Characters

So You Want to Use Song Lyrics in Your Novel?

Can I Mention Brand Name Products in My Fiction?

Can You Use Celebrity Names in Fiction?

-R

I didn’t want to continue this but I just got this mail back from tumblr. Since the tumblr Terms of Service are a bit unclear on posting copyrighted materials, I decided to take matters into my own hands and sent them a mail before I went to bed yesterday, when things were still heated.

This was their reply.

There is no way getting around this. This is a direct answer from Tumblr on the matter. This is what matters because this is tumblrs final say on the matter; if you’re not the holder of copyright, you should not post or use things unless you’re granted permission. What I’ve been saying all along about using my art was right; plastic had no right to use it and no right to defend their use of it.

So there we have it, proof that just because something is on tumblr, a public place, does not mean you have the right to use it. Using copyrighted material without permission is breaking the copyright law of the united states.

So in the end, I had all right to complain and whine. I totally get if plastic didn’t understand the Terms of Service because lets get real, they are a bit unclear, but this is tumblrs final say in the matter; copyright still stands, even on tumblr, and breaking copyright is breaking (or rather, infringing is a more accurate word) the law (the copyright law).

This is why you ask before you use things that do not belong to you. Even tumblr agrees. Tumblr never gave you the right to use anything.

This will be the last I say on the matter. According to tumblr staff and tumblr service, what plastic did was wrong and by all means against the copyright law. Thank you.

Copywrong

image

Why have copyright issues grown and grown? In this week’s issue, Louis Menand asks what the intellectual-property battles really mean:

“Before the Internet, the social cost of this obstacle was minimal. … But today, when everything can be made available to the entire world at minimal expense, it seems absurd to hold enormous amounts of content hostage to the threat of legal action from the odd descendant.”

Illustration by Thomas Burden

anonymous said:

What is tumblr people's problems with YouTube up loaders? I know that I can't afford to buy all of the routes that I would like to, so when they are on YouTube I don't have to buy them ALL. Voltage still makes tons of money with the videos up and I wouldn't even know that voltage exists without them

Hey Anon! I can’t speak for all of tumblr, but I’m putting forward, as a scientist should, a few hypotheses. You’d need to do an experiment, and test the significance against the null hypothesis, to see if/any of the alternatives can relate to the whole of tumblr. The alternatives are not necessarily mutually exclusive, or necessarily all have to be believed by one person, but could be reasons to why tumblr has a problem with Voltage and copyright infringement.

1.) The Law. Uploading the routes to Youtube is copyright infringement, This is not strictly amoral, but it is illegal. Some people believe that the law should be respected and kept at all times.

2.) Capitalist Society. People have jobs, and work hard for their money. In western culture at least, you cannot get money for free (issues of government assistance aside). With their hard earned money, people pay for the routes. Why should somebody spend their money on something nice, something they earned, when other people get it for free?

3) Economics. Voltage isn’t a tycoon of a company. Every route not bought is less money for the company. At £2.50 ($3.99), if ten people watch on Youtube instead of buying, that’s a loss of £25 ($39). To put that into perspective, in England, that’s just under 4 hours minimum wage. The videos, on Youtube, get thousands of views before being taken down. That’s a lot of money lost. That’s money that could have gone to hiring new artists, translators, content creators, advertising, admin. You name it. Not to mention having less jobs keeps people in unemployment.

5) Profits. If a game isn’t making money, it will be discontinued. Why would Voltage put time and effort into creating something that isn’t worth it? At the end of the day, Voltage is a company responsible for it’s employees. They are not going to continue a profitless game when they have wages to pay. If you watch routes on Youtube, and not buying them, you are helping to destroy the game you love.

6) Demographics. The most popular characters/games get uploaded to Youtube in a heartbeat. That leaves the less popular characters/games not uploaded. Imagine a world where everybody watches on Youtube and was cool with it. You’ve watched 4/5 routes for a particular game on Youtube, and you can’t find the 5th route anywhere online. You love the game so much, that you tell yourself “just this one time”, and buy the route for real. You liked the route, but it wasn’t your favourite guy. In this scenario, Voltage are getting false information about what is popular. They don’t know who or what the popular theme is, because nobody is buying the truly popular route. And so, they don’t make any more routes similar to what’s tending. They’ll be less special events or sub-stories for that popular character.

So, to carry out this experiment, to see what tumblr’s problem is, we need to get a large sample size, a questionnaire, and probably do a literature review on copyrightright/politics/economic beforehand. Every experiment should enriched with respect to previous work. Send me a message if you want to start a study. I’m down with that.

(please dnt send a message, i do not have the time to start a new reaserch project)

Selling Fanart illegal?

I got another question regarding the selling of fanart which I thought is worth mentioning as well.

Most fanart is, once you sell it, a copyright infringement as you are using intellectual property of someone else to make money (aka: theft).

Many companies however, see fanart as free advertisement, tolerate it, and as a result, the trend of drawing and selling fanart at cons and online has become very popular.
But some companies do send out a cease and desist, and they are completely in the right when they do. If this happens, you should remove those works immediately.

The only time this is ‘safe’ is when your work is a parody of the original. 

On fanart & copyright: ◘◘◘ , ◘◘◘

youtube

The Bizarre State of Copyright

In which Hank discusses what intellectual property is, and how copyright is increasingly being policed by dumb robots that don’t have very much to do with the law, but have everything to do with it just being REALLY COMPLICATED and there being terrifyingly massive amounts of media to regulate.

In the last few days, a number of Teen Wolf fanartists with stores on RedBubble have posted/tweeted about takedowns by RedBubble of some of the items in their stores. From what we’ve been told, all the items either had “Teen Wolf” in the tags, in the item or store description and/or in the item/store title; RedBubble isn’t claiming ownership of the works, and the language in the emails doesn’t say whether Viacom complained, or whether someone “authorized to act on their behalf” (namely, Redbubble themselves) cited the work as having issues.

This is not the first time RedBubble has taken down merch and sent an email to the store operator; RedBubble does this when their bots ”see” something that could be infringing (even if it isn’t) and generally RB tells the site operator that they were taken down after RedBubble ”received a complaint from [a major multinational rightsholder], the claimed owner or licensee of related intellectual property, and in accordance with Redbubble’s IP/Publicity Rights Policy.”

Back in 2003, CafePress took down fanart inspired by the Harry Potter characters from HPEF’s Nimbus - 2003 fancon store, because the site’s bot did some image recognition thing and CP’s policy was to take things down if the image matched up with images submitted by the copyright and/or trademark-holders. We replied to CafePress, explained that the works were transformative works and didn’t have any trademarks on them, and they were put back up shortly thereafter. Similar things have happened over the past 11 years. Every single popular show/film/brand/band/comic/series is included by CP and RB in their “usage review” systems.

As CP said in a recent annual report, ” We maintain content usage review systems that, through a combination of manual and automated blocks, monitor potentially infringing content of which we become aware.” Redbubble said something similar this summer:

Although we’re not required by law, we take further proactive efforts on many occasions and work closely with numerous content owners, brands and individual artists to minimize instances of third party infringement of intellectual property rights via the Redbubble marketplace.

They don’t always notify the copyrightholders or trademark owners expeditiously; CP and RB’s bots check the images and the descriptions and take things down just because the IP owner has put their brands and sometimes their art into the CP and RB content management system. That doesn’t mean there aren’t “false positives” - the content management system doesn’t check for fair use or parodies or commentary/criticism, and we’ll explain how to make them aware of that below.

The laws in the US regarding transformative works and copyright infringement have expanded over the last decade to define more things as Fair Use - and the bots that stores like CafePress and RedBubble use have become more precise; they’re similar to “Search By Image” on google. However, the laws regarding trademark infringement in this sort of situation are relatively unchanged.

Fanart shared in the “gift economy” is fair use; we posted extensively about noncommercially distributed fanart back in January. Selling fan art may also be fair use as a matter of law, for purposes of determining whether it infringes on someone else’s copyright.  However, even if a work is fair use under copyright law, selling it in connection with someone else’s trademarks may constitute trademark infringement.

It’s not a given - it won’t always. If the marks are used descriptively, if they’re used to compare things, etc., it may not be trademark infringement. But you are less likely to get a takedown notice if you don’t include tags that are a show or film or band’s trademark - use a shortened version of the show title (TW, ST, SPN, AOS, etc.) or a ship name or a character’s last name instead.

If you do get a takedown notice and you think that what’s been taken down is fair use, you are allowed to respond and explain why the work is noninfringing. You can discuss these factors:

1. The purpose and character of the work (Is the fanart transformative? Was it made for non-commercial purposes? Selling something on RB impacts on this factor, but it’s not the only element at issue, especially if the fanart doesn’t replicate something seen on screen or in a comic strip panel.)

2. The amount and substantiality of the copyrighted work used (How much of the copyrighted work was used and why was it used? For fanart, usually little if any of the copyrighted work was used.)

3. The effect on the market of the copyrighted work (Will the work be used as a substitute for the original copyrighted work or impact the market for sales of merchandise related to the original copyrighted work?)

You also might want to include language inspired by this:

As fair use is a lawful use of a third party’s copyright, to the extent that this art uses another’s copyright, it should be deemed fair use under 17 USC 107 because it is (a) transformative and (b) does not adversely affect the market or potential market of the original work or derivative works. When determining if fair use is applicable and thus a work noninfringing, the central purpose of said investigation [into purpose and character of use] is to see … whether the new work merely “supersede[s] the objects” of the original creation, or instead adds something new, with a further purpose or different character, altering the first with new expression, meaning, or message; it asks, in other words, whether and to what extent the new work is “transformative.” Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569, 579, 114 S.Ct. 1164, 127 L.Ed.2d 500 (1994), Zomba Enterprises, Inc.; Zomba Songs, Inc., Plaintiffs-Appellees, v. Panorama Records, Inc., Defendant-Appellant., 491 F.3d 574 (6th Cir. 2007).

 Takedowns like this happen all the time; they happen when they’re justifiable because someone’s uploaded a show-created poster as a Redbubble tote bag or CafePress coaster, they happen when someone “markets” their fanart using a trademark that the show’s creators or distributors own, and they happen when works are completely noncommercial and only on display. Absent other information, it’s not practical to assume that it’s part of a crackdown on specific artists or ships, and with regard to what’s happened to some Teen Wolf artists this week, it’s impossible to even know if the takedowns were because the trademarks were used, or because of the images themselves. We’d love more info, though - so if your art has been taken down on RedBubble and you weren’t using Teen Wolf - or any character names - in the tags or descriptions, and you’ve submitted a “Fair Use” counternotice, and it still hasn’t gone back up even though a few business days have passed, please let us know and we’ll see if we can learn more.

Follow FYeahCopyright for more on legal issues of concern to fandomers.