fyeahcopyright

14 DAY OPEN-SOURCE CHARACTER-MAKING CHALLENGE: FUCK YOU DISNEY, WE'LL MAKE OUR OWN PUBLIC DOMAIN!

1. Superhero

2. Species of Monsters

3. Evil Overlord/Overlady

4. Quirky/Bizarre/Ludicrous Secondary Character

5. Magician/Wizard

6. Robot/Computer/Machine

7. Biological Experiment

8. Anthropomorphic Animal

9. Hired Killer/Hitman/Assassin

10. Eldritch Abomination

11. Singular Monster Character

12. Unique Fantasy/Sci-FI Race

13. Organization based on a Table of Correspondences

14. Setting

Further explanation stuff/FAQ below the break.

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@fyeahcopyright Reacts to the REACT Trademark Application

Last night,​ @edwardspoonhands posted a piece on Medium about @thefinebros​ and the ongoing kerfluffle about their “ownership” of “REACT”; Hank updated his piece overnight, but it still both oversimplifies and overcomplicates trademark law in the way not uncommon to most intelligent people who haven’t practiced trademark law for years (i.e. the analogy to Burger King is great and the note that trademark law isn’t the same as copyright law is an important one but the distinction between descriptive and generic marks is skirted over, even though it could impact what rights the Fine Bros own). 

However, we have (well, @heidi8​ has) practiced trademark law since literally the 1990s, and we want to get in the weeds, look for the seeds of the Fine Brothers’ misdeeds - or, more possibly, the absolute incomprehension of YouTube by their lawyers. 

Someone told Hank this at some point, but it’s not accurate. 

Trademark rights in the US are accrued by use, not by registration. Absent some very limited exceptions, a person/business/nonprofit/team/organization/family (hereinafter “Entity”) starts to develop rights in a trademark as soon as they start to use it (commercially, which is defined very broadly), but when the word is not a coined term, those rights are tied directly to the types of goods or services or serieses (hereinafter, “Stuff”) on which that mark is used. 

In other words, APPLE can be one company’s trademark in connection with computers and another company’s trademark in connection with music, and both of them can put it on t-shirts and pens and stuffed animals as long as the logos aren’t the same, and there won’t be any conflict (until the computer company wants to start selling music). 

The concern for the courts and the trademark office is Likelihood of Confusion, and there are tests to determine if a junior user is likely to be confused with a senior user. There are a lot of things the courts look to, including the overlap between the parties’ Stuff and their distribution channels, and even the number of similar marks in use on similar Stuff. 

PTO and court policy states that if you’re using a dictionary word in connection with a filmed series or a book series, you have to specify the theme of the series - with @thefinebros did in their PTO applications. They already have registrations for three marks containing the term REACT, and a bunch more are publishing tomorrow, which means that anyone can file a petition to oppose the registration, which an attorney has already said he plans to do, on the grounds that REACT is generic (though I hope he argues in the alternative that it’s descriptive of the Stuff). 

Why does it matter whether REACT describes “a series of programs in the field of observing and interviewing various groups of people”? 

Because the USPTO does not allow registrations of marks that are descriptive of the Stuff that they are used commercially with without a showing that the mark has acquired distinctiveness. The word “react” describes the content of the programs - they show people reacting to things. 

A claim of acquired distinctiveness generally required the claimant has been the sole and exclusive user of it, advertised it extensively, etc., because they have to show that “the primary significance of the term in the minds of the consuming public is not the product but the producer”. In other words, when people hear “a react video” do they think of The Fine Brothers and/or their designees, or do they think of any video where someone is reacting to something? 

If you weren’t the senior user of it in the first place, and others have used it before you and while you’ve been using it, and it’s very descriptive, it takes a lot of effort to say that secondary meaning has attached to it in connection with that specific Stuff

But not necessarily for all Stuff. Is REACT descriptive for candy? Nope, and it’s likely they’d be able to get and keep a registration for REACT in connection with candy, t-shirts, mouse pads, swords, and probably even cameras and microphones. 

Is their distinctive REACT logo that they use on YouTube & elsewhere descriptive, design-wise, of the Stuff? Again, no - so they would probably be able to get and keep a trademark registration for the Design Mark REACT, as long as they stated to the PTO that they don’t claim exclusive rights to the word, just to the logo. 

Those are neat ways to protect a brand that you’re building while not trying to restrict those who are using it descriptively or decoratively, or on unrelated goods and services. Start using it on merchandise like candy or shirts or stuffed microphones or camera-pillows, and protect the logo so people know that it’s MY THING unless it has that logo on it. 

If a mark is generic for specific Stuff, btw, nobody can register it and secondary meaning cannot develop. But again, a mark is only generic for specific Stuff, like “apple” is generic for the fruit, but not generic for computers or music companies. 

What puzzles me about this is, why did they suddenly announce their licensing project right before their current applications publish? As I noted above, anyone who believes they may be damaged by a registration - including anyone who may ever want to create a video of people reacting to things and use the term “react” in connection with it - can file to oppose a registration; you have to file papers with the PTO and there’s a fee, and the process can take over a year to move through the Trademark Trial and Appeal Board, but if you win, the mark doesn’t register - which doesn’t mean they can’t use it because rights-by-use-not-registration - but it does prevent them from getting the benefits of registration. 

Even if they aren’t trying to prevent everyone from using the word “react” - and no, they don’t have the law on their side if that’s what they are trying to do - why did they put their pending applications at risk like this by shouting about it? Is it because they can now claim secondary meaning more easily than they could in, say, September of 2015? 

Fwiw, the marks that they have already registered, including KIDS REACT, TEENS REACT and ELDERS REACT, haven’t been registered for five years yet, and thus anyone who believes they may be damaged by the ongoing registration of those marks can petition the PTO to cancel those registrations on the grounds that the marks are descriptive of the Stuff; again, small fee, pleadings filed with PTO, will take over a year through the TTAB. 

But, still. 

And that’s not even as significant as the hundreds of thousands of subscribers they’ve hemorrhaged over the last few days. 

Will this situation make them rethink their licensing plans, and switch to protecting their Stuff by using their marks on merch? 

We’ll see, and I am sure that we will react.

4

ef yeah copyright law turned 1 today!

We started with a post about Universal Studios, 50 Shades of Grey, and a baseless claim from a porn company that the X-rated film they were making was a parody. Check out the tweets Heidi sent earlier in the day, which inspired her to set up fyeahcopyright as a resource and site to do all the fandom/legal issues we’ve been blogging about all over the net for years.  

And that’s pretty emblematic of the kinds of posts we’ve been making here on FYeahCopyright over the last 365 days - and what we expect to be posting in the future. 

SO many thanks to the nearly 5000 people who are Following us here on tumblr, everyone who’s asked an insightful or curious question, the tens of thousands who’ve reblogged and Liked out posts, and every person who’s helped stop the spread of misinformation about fanworks, copyright and trademark law, parodies, fan creativity, terms of use agreements, proposed government initiatives, and so much more. 

If you’re at SXSW next week, drop an Ask because Heidi would like to thank you in person. if you’re going to Comic Con, we’ll ask for you to drop an Ask in June or July, because Heidi and Hannah would like to thank you in person. 

And post-SXSW, we’ll have a swag-filled giveaway here at FYeahCopyright, so stick around!

I've Got The Fandom In Me

Going to San Diego Comic-Con?  

I’m honored to be on a panel that’s all about FANDOM, along with fyeahcopyright, a representative from wattpad, #Henry-Jenkins, and flourish! So let’s celebrate –

Here’s the details: 

Creativity is Magic: Fandom, Transmedia and Transformative Works July 25, 7:30-8:30 PM Room 26AB

This panel looks at the fascinating world of fan/creator interactions. In the last 18 months, fans have been paid for fanfic, licensed their fanart to networks and shows for use on t-shirts, DVDs and crowdfunded projects, created and played apps for and with actors and films, published books that started out as fanfic and advanced creativity and discussions every day. Compared to 2004 - or even 2010 - connections between fandom and transmedia storytelling have changed so vastly - but on ArchiveOfOurOwn, Wattpad, tumblr and Vine, and at fancons, the “gift culture” and traditions of transformative works endure. Explore the landscape with Orlando Jones (Sleepy Hollow), Flourish Klink (Chief Participation Officer at The Alchemists), Professor Henry Jenkins (Provost Professor of Communication, Journalism, and Cinematic Arts, USC) and Aron Levitz (Wattpad) in a discussion moderated by Heidi Tandy (FYeahCopyright.com). 
EBooks-Tree

Because there is nothing more exciting to research than Internet Panic merging with Internet scams (ok, that’s not quite true, but it is pretty fun), I played with the ebooks-tree.com beast that reared it’s ugly head today. (original post from fyeahcopyright )

First, yes, it appears to be utterly random. I have twelve “stories” listed there, out of the almost 200 I have at AO3. Those twelve include one that’s got only a few hits and is only a drabble, and another marked incomplete on AO3. None of the stories have big enough hit/word counts to distinguish them on AO3 in any way (or me, as a writer, in general), and they’re not all recent, alphabetical, or any other pattern I can see. So how those were chosen beats the hell outta me.

Second, more importantly, I’m not sure there’s any content at ebooks-tree.com at all? 

On the page for each of my stories at ebooks-tree.com, there is a “Download” link (in the center), and there’s also a link to the left for a mobi file. And, at least for all my stories, the mobi files are direct links to download the mobi files from AO3.  (eta: AO3 has now blocked ebooks-tree from offering the downloads, so that takes care of that).

The “Download” links are weird and sketchy. When you click on them, they refer to urbookdownload.com or urbooklibrary.com (the same fic has referred me to both, and they appear to be the same search site just in different skins, if you go there directly). Then trying to get at the title forces you to LilPlay to register (or LazyGame? I keep getting the LilPlay link, but the original post at fyeahcopyright​ says LazyGame). At the bottom of the urbookdownload.com referral, is a notice that says basically, “this title has been furnished by a third party and we don’t know that it actually exists”. And you know what?  When you go directly to urbookdownload.com and search the title, it’s not there (I would guess because AO3 excludes itself from that search, though I can Google the fic just fine). So the possibility exists that even if you register, there is nothing to find/read directly if the ‘LilPlay system’ requires a refer through the search service to find a copy of the work.

I also took a look at other works at ebook-tree.com, and at least from my sample of half dozen titles (randomly chosen, books with cover pictures and summaries, unlike the blank AO3 ones), I found that trying the center download link refers to LilPlay registration and Urbooklibrary/download.com, same as before, but trying to download the mobi or pdf file, bypasses the LilPlay registration but sends me elsewhere. One of those sites was “NitroFlare.com” which looks suspiciously similar, name-wise, to “CloudFlare” the apparent host of ebooks-tree server, according to the fyeahcopyright update. So they may be hosting works there at NitroFlare.com, but there was also at least one more filesharing service I saw, which claimed to be a UK company (NitroFlare says in its ToS they’re registered in Cyprus). There was also a book that linked straight to Smashwords - both to read online and to download directly. And if you look up a public domain book (I looked up Middlemarch) you will see a plethora of versions they’ve linked to, which you can read or download.

Anyway, the point being, it appears to me as if the left-hand links go straight to the download link/s, including online reading and whatever formats the bot could scrape easily from a variety of ebook sources. But the center “download link”, appears to function more like a pop-up ad purporting to be a download, than an actual download link. (on a different site that ad would be trying to get you to download a toolbar). The real links are the left-side ones, the middle one is a fake/ad.

Other than trying to inflate their “catalog of titles” I don’t even know why ebooks-tree.com is bothering with the AO3 stuff, since it’s not searchable (except by author/title) and there are no summaries with the stories. And yes the whole thing is shady as hell (given that they seem to be run by the same people who run a pirate site, is probably not a shock), leaning heavily on both legal uploads elsewhere and probably pirated versions elsewhere, but I’m gonna need something else to make me think they’re actually hosting my content.

Just as a general rule of thumb though, don’t give your credit card number to businesses who claim to “regulary” do anything. >:/

Ebook Tree REMOVES Stolen Work

AWESOME!!!! EBOOK TREE TOOK DOWN THE GIFT!!!!!!! 

I didn’t receive a formal response to my complaint, but when I searched under my pen name and “The Gift” I couldn’t find it anymore.  It was removed.

Calling all fanfiction writers!!!!! If your works were stolen by Ebooks and you have not filed a DMCA complaint - DO SO NOW. IT WORKS. If you have filed a complaint, go back to the site and search for your stories. It looks like we do not receive any notification from Ebooks if it’s been removed.

Special thanks to besinaao3 and fyeahcopyright​ for leading the charge and sending out instructions on how to file a DMCA complaint.

Score one for the little people!

I will keep my A03 account. It looks like A03 has taken some additional precautions to stop this from happening in the future. I do plan on keeping the stories locked. Only registered users can read them. This was a recommendation of A03. At least for the time being. I need to confer with my technical support (aka the husband).

If you are not a registered user at A03 then you can read my stories on my Tumblr blog.