#intellectual copyright

[prokopetz]

Some people say that in order to be effective, post-apocalyptic fiction needs to strike a balance between having the cause of the apocalypse reflect contemporary anxieties, and framing that cause in a way that's at least somewhat plausible. These people are cowards. Write that story where the extinction of the human species was caused by overzealous copyright enforcement. You know you want to.

[incognitopolls]

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[thecolacorporation]

Last week I received a cease and desist letter, claiming that my F*CK THE LAPD design was in violation of LAPD intellectual property. A few days later my lawyer sent this letter, seen here in its entirety.

[alianoralacanta]

To be clear: all Sherlock Holmes characters are already in the public domain right now. The stories in which they originally appeared will be in the public domain at various times, depending on national law and, in some cases, when they were written. In the UK, copyright on all of the stories expired in 2000 (with a small gap in 1980 due to a delay in renewing the copyright). In Canada and Australia, copyright on all of the stories expired in 1980. In both these cases as well as the UK one, the author’s death is used as the copyright index date). In the USA, copyright on the stories expired in 1998 (except for those published after Arthur Conan Doyle’s death, for which the copyright index date is when those stories were published). OP’s post is because “The Adventure of the Veiled Lodger" and "The Adventure of Shoscombe Old Place“, the last two of these stories, exit copyright in the USA on January 1, 2024. If you live somewhere else, please check your country’s copyright law. While the characters are almost certainly no longer copyrighted, the status of the stories will vary, especially if you’re discussing one of the later ones.

Fun Fact: in one month, all Sherlock Holmes stories hit the public domain and the Conan Doyle Estate can't do shit! I say this for absolutely no reason but also congrats in advance to the happy couple.

[lackadaisycats]

Hello, I recently remembered the polish fireworks (or something similar?) that used your art on the product.

Now that Lackadaisy has expanded to a different medium and reached a bigger audience, would it be legally troubling to have random fireworks with your intellectual property on it floating around?

Maybe they stopped using your artwork and the problem has already solved itself, I was just curious.

Oh. Yeah. It was actually a US based company in Texas that was printing my art on fireworks packaging. I contacted them about the copyright infringement years back. They blamed their manufacturer overseas, but said they'd put a stop to it. Still, every July someone reaches out with some photos from a fireworks pop-up tent, having spotted some of my art therein. I suspect it's just old inventory the sellers are still fishing out of a warehouse somewhere, though, because it's always the same art on the packaging.

It would be troubling if it happened anew without proper license, yes, since that's a form of theft and a sort of loss of agency for me as the creator/IP owner to determine how my work is represented. Even if someone made an attempt to license Lackadaisy for such a thing, I'd probably decline. I'm not morally objected to people enjoying fireworks responsibly, and I guess you could say they're thematically on brand, but knowing what my pets and other people's pets go through every year due to the noise...ehh. I don't want traumatizing non-fictional animals to be part of my business model.

[the-irreverend]

Now we see the stupidity inherent in the system (that is modern copyright law.)

[good-fwiend-in-wome]

software is an objective proof that copyright is fundamentally incompatible with the modern age btw.

paintings, movies, and books never become obsolete. whatever current novel is hot will still be just as readable in decades when it becomes public domain, anyone with the knowhow can make a film projector.

software, on the other hand, specifically videogames, need active ongoing preservation; up to date emulators, storage, etc.

the people who say "um why are you emulating a console that is still on sale" fundamentally don't understand that preservation for games is an active process. if you wait until a console's lifetime is over to start doing this stuff tons of art will be lost, especially nowadays with digital storefronts that can take away your games, starting to make emulators and preserve games as soo as possible is crucial

nintendo's "case" (IANAL, but it's fucking bullshit) against yuzu was, as i understand it, based on the idea that since yuzu needed dumped parts of a real switch's OS, it was infringing on their IP. if we took this seriously and didn't allow bring-your-own-bios emulators until every part of a console's OS is in the public domain, then we might as well give up on emulation, because in decades by the time that's possible, all games will be lost and the tech will be so old that the amount of work to even start an emulator would be monumental

abolish IP.

[alianoralacanta]

It is entirely down to defending copyright (an approachable take complementing this one can be found at the end of this Chambers article). F1 has had a couple of occasions where income has been lost due to a copyright having been deemed to be insufficiently protected - Force India vs Toyota in 2010 (an industrial espionage case where Force India got a token payment because the team was judged not to have protected its copyright well enough) and Hesketh Racing vs Lord Hesketh in 2011 (Lord Hesketh was held not to have maintained the copyright to the Hesketh logo and thus lost the right to restrict use of it). Thus, the stakes are not "possible confusion of F1 journalistic content" or "F1 being associated with dodgy content". It's "someone can make a breakaway F1 series, call it F1 and claim all of F1's history, and Liberty/FOM being unable to stop them from making any money or claiming any compensation for doing so". The average F1 creator doesn't have the money to compensate Liberty/FOM for this, unsurprisingly.

Bernie Ecclestone and Liberty, through the F1 Licensing element of FOM, has, sent takedown notices to websites it regarded as infringing the trademark since 2004. I've seen reports of such notices sent nearly every year since then (except the COVID years, possibly due to the backlog in commercial legal disputes - this would not have been FOM's choice) His definition, as Liberty's, was simple: if one is using F1 outside the stipulated guidelines and had not already agreed terms for doing so, the cease-and-desist notice got issued and, if needed, court enforcement. Automated procedures on large platform sites made this gradually easier. The company running the large sites could easily apply the notice, in some cases simply by relying on the earlier letter to establish the legality. None of this relies on checking any sort of context for the matter. There was no attempt to determine whether it made the creator any money*, whether it put F1 in a good or bad light, or even whether it was covered under a legal exemption in the country within which the creator was based. For platform sites, the Terms and Conditions signed will assert that the laws of the platform apply. Liberty will know what those are, and will conveniently allow the combination of its legal team's size and the fact it is most often the platform actioning the item to avoid having to care about such niceties as the satire exemption. * - Making money is an aggravating factor at court, but most creators don't make enough from their work for Liberty to consider pursuing that money worthwhile. It wants control over the trademark, not reclaim every last penny of potential damages as an individual infringed contributor going to court might need to do. Independent websites sometimes are more difficult to check. British law is less generous to creators than the American one, and virtually no defence exists in England, at least, if Liberty or FOM sends a cease-and-desist letter to one's website asking for a takedown. For Americans and some other countries, that's not the case. That said, size would not have been a consideration; there are few legal teams FOM cannot outspend, so even the BBC would be careful about operating within legal bounds. Any F1-specific site that isn't the official one would have major problems paying for a court case to defend itself long enough for a judge to rule against FOM, if Liberty instructed FOM to flex that muscle. Legally, FOM can't prevent things from being written about it by commentators from the UK, USA or a lot of other countries, unless they are outright libellous. This is not something that can be automated at this point, though efforts to get the fundamental algorithms in place (currently aimed at reducing online abuse, which requires similarly qualitative calls) continue apace. If Liberty starts suing for libel, it won't be because of views getting more extreme, it will be because the effort-to-reward scale becomes manageable. Why not employ content creators? Liberty has to worry about anti-competition law, because there are large numbers of independent journalists who pay the FIA for their paddock passes and expect to not be excessively undercut. So it sticks to its official offering, which largely consists of people who were F1 fans, started producing F1 content professionally for other organisations and made an agreement to work for FOM later. This would apply regardless of how the FOM licencing got done. Even if FOM was generous enough not to require a script or clearance, it would still be at risk of anti-competition investigation, hence the option is not on the table for these creators. They have 3 options: 1) create independently under the F1 trademark guidelines 2) get hired to produce content professionally for an independent organisation 3) hope a vacancy appears in the Liberty/FOM set-up, into which they can slot.

F1 and independent content creation

Recently, especially on Tiktok, F1 content creators apparently got letters stating they have to change their branding, as in take ‘F1’ out of their username and stop using exclusive F1TV content. There has been quite an uproar around this happening, with many fans not understanding why liberty media would forbid free marketing for them and complaining about it, so i would like to explain the choices made and how this influences content creation way less than most assume.

First of all, I have not seen the apparent letters myself, thus i can only guess what exactly it states, but as far as i see it, it only states that content creators have to keep copyrighted content, like the name or content out of their videos. It is not forbidden to continue to post anything, although I could see that changing with the current behavior of a few people.

A lot of people on tik tok claim that F1 content creators were the reason why they got interested in F1 and that it’s a shame Liberty media has used this for years but now that they got all the fans try to keep the independent content creators down. In itself this claim explains liberty medias choices; F1 content creators have gotten big, with thousands of followers to the point that they make money of F1 content, which is a whole legal affair in itself but i’ll even skip that point (although i’d be very happy if someone that has more knowledge of the law would explain it closer). Liberty media cannot control what these accounts post, which sounds good in the first place, but can become really dangerous and annoying to F1 fast.

Let me give you an example; we are going to imagine a girl now, let's call her Katie (for legal reasons, this is not framing but an example. As of 18.08.2024, none of these accounts or people exist to my knowledge). Katie is a big F1 fan, so she decides to make a tik tok account called ‘F1UpToDate’. She quickly gains thousands of followers by making videos about grand prixs, silly season, you’ve all seen the videos. Well now Katie is not a saint, no one is, so she makes a video saying racist things. Said video gets millions of views and now liberty media has a problem; due to the account name, they are directly tied to anything problematic she posts or says and there are many people misunderstanding that Katie is independent from F1. It sounds outlandish, but currently, there are quite a few F1 content creators that are big enough to be confused with an official F1 account. Now liberty media has to put out press releases and talk about how they have nothing to do with the post,... Instead of waiting for the shoe to drop, they are currently preventing anything like this from happening, especially since no one can predict what bad things people could actually do.

Now I’ve seen quite a few people also confused, why not just employ F1 content creators? They are well loved by the fans and could attract more fans, but people underestimate how expensive that actually is. As far as I see it, there's only two ways that would work, and in both cases the content creators would lose the independence that makes their videos so fun. Either, they have to get every single video by PR managers of liberty media approved, which would mean less funny and spontaneous videos, or they would only be allowed to post by a script, which again, would make them dependent. 

In the end, if we go back to our example, had the account been called ‘MotorsportsUpToDate’, there would still be outrage if something bad was posted, but at least both the content creator would have been independent and liberty media not affected. People will still be able to find content creators and they’ll still be able to attract new fans, a new username won’t change that.

To be honest, I'm even surprised liberty media let them get away this long with getting money from their name. Again, I'm not well versed in law, but I am aware that money creates these situations too.

But like always, I'd like to know what other people think of this, if you agree or maybe know more about the law than I do in this case.

[anghraine]

Okay, breaking my principles hiatus again for another fanfic rant despite my profound frustration w/ Tumblr currently:

I have another post and conversation on DW about this, but while pretty much my entire dash has zero patience with the overtly contemptuous Hot Fanfic Takes, I do pretty often see takes on Fanfiction's Limitations As A Form that are phrased more gently and/or academically but which rely on the same assumptions and make the same mistakes.

IMO even the gentlest, and/or most earnest, and/or most eruditely theorized takes on fanfiction as a form still suffer from one basic problem: the formal argument does not work.

I have never once seen a take on fanfiction as a form that could provide a coherent formal definition of what fanfiction is and what it is not (formal as in "related to its form" not as in "proper" or "stuffy"). Every argument I have ever seen on the strengths/weaknesses of fanfiction as a form vs original fiction relies to some extent on this lack of clarity.

Hence the inevitable "what about Shakespeare/Ovid/Wide Sargasso Sea/modern takes on ancient religious narratives/retold fairy tales/adaptation/expanded universes/etc" responses. The assumptions and assertions about fanfiction as a form in these arguments pretty much always should apply to other things based on the defining formal qualities of fanfic in these arguments ("fanfiction is fundamentally X because it re-purposes pre-existing characters and stories rather than inventing new ones" "fanfiction is fundamentally Y because it's often serialized" etc).

Yet the framing of the argument virtually always makes it clear that the generalizations about fanfic are not being applied to Real Literature. Nor can this argument account for original fics produced within a fandom context such as AO3 that are basically indistinguishable from fanfic in every way apart from lacking a canon source.

At the end of the day, I do not think fanfic is "the way it is" because of any fundamental formal qualities—after all, it shares these qualities with vast swaths of other human literature and art over thousands of years that most people would never consider fanfic. My view is that an argument about fanfic based purely on form must also apply to "non-fanfic" works that share the formal qualities brought up in the argument (these arguments never actually apply their theories to anything other than fanfic, though).

Alternately, the formal argument could provide a definition of fanfic (a formal one, not one based on judgment of merit or morality) that excludes these other kinds of works and genres. In that case, the argument would actually apply only to fanfic (as defined). But I have never seen this happen, either.

So ultimately, I think the whole formal argument about fanfic is unsalvageably flawed in practice.

Realistically, fanfiction is not the way it is because of something fundamentally derived from writing characters/settings etc you didn't originate (or serialization as some new-fangled form, lmao). Fanfiction as a category is an intrinsically modern concept resulting largely from similarly modern concepts of intellectual property and auteurship (legally and culturally) that have been so extremely normalized in many English-language media spaces (at the least) that many people do not realize these concepts are context-dependent and not universal truths.

Fanfic does not look like it does (or exist as a discrete category at all) without specifically modern legal practices (and assumptions about law that may or may not be true, like with many authorial & corporate attempts to use the possibility of legal threats to dictate terms of engagement w/ media to fandom, the Marion Zimmer Bradley myth, etc).

Fanfic does not look like it does without the broader fandom cultures and trends around it. It does not look like it does without the massive popularity of various romance genres and some very popular SF/F. It does not look like it does without any number of other social and cultural forces that are also extremely modern in the grand scheme of things.

The formal argument is just so completely ahistorical and obliviously presentist in its assumptions about art and generally incoherent that, sure, it's nicer when people present it politely, but it's still wrong.

[toastedpopsicle]

Imagine believing there's anything just about imprisoning someone over fucking video game clips. IP law is such flagrant violence and so fucking counterethical to the natural act of creation.

Remember that if you think ideas and images can be owned, you agree that violations of that ownership deserve the full violence of imperial carcecal systems.

[summertimealice]

Last Chance to Steal Mickey Mouse

That's right! Only a few more hours where you, dear reader, can violate the intellectual property of The Walt Disney Company!

This business card contains not one, but two illicit works of commercial fiction about characters from the 1928 short film Steamboat Willie!

When 2024 begins, this will become just another legally published work riffing on a public domain work, but for now, this is a sort of LARP where we can revel in the theft of intellectual property. 

Remember: intellectual property is definitely real and is something you can steal even though it has none of the properties that make actual physical theft a potential problem. It definitely was not invented by book merchants so they could own the right to an author's underpaid labor and it definitely does not enables the hoarding of billions of dollars worth of intellectual property!

© Dec 31, 2023. Mickey, Minnie, and Pete are my original characters who I created and Bob Iger even told me this was ok to sell for money

Buy it here

[pappito]

watch this carefully

[prokopetz]

Mickey Mouse's entry into the public domain comes with significant caveats. While the Mickey Mouse who appears in Steamboat Willie (and other media published in 1928 or earlier) is free to use, there's established precedent that specific elements of a character which appear exclusively in later works which still fall under copyright may be protected, if sufficiently distinctive.

(This is the basis of, e.g., the infamous "Sherlock Holmes can't respect women" lawsuit: the Doyle estate, which at the time owned only a tiny handful of the latest-written stories, the others having already fallen into the public domain, argued that specific personality traits which Holmes exhibits only in those later stories are sufficiently distinctive as to be the valid subject of an infringement claim.)

With respect to various elements of Mickey's visual design, such as his red shorts and signature gloves, the matter is clear: just don't use those for another few years. However, there's another thing Mickey's public domain iterations don't exhibit: speech.

The present consensus among copyright scholars seems to be that "a character speaking" is not sufficiently distinctive as to qualify for protection, but the vocal characterisation with which Mickey Mouse is famously associated may so qualify. So, if you want to be scrupulously safe, you can have him talk, but not in that exact specific voice.

Which raises a fun question: what voice would you give him? Wrong answers only.

[miochimochi]

Made 2 new lino cuts. The fabric here isn't the best for stamping it seems but it's enough to show off.

[incognitopolls]

"Other purposes" such as training generative AI, printing on t-shirts, etc.

–

We ask your questions so you don’t have to! Submit your questions to have them posted anonymously as polls.

[fansplaining]

Episode 211: The Copyright Conundrum

In Episode 211, “The Copyright Conundrum,” Flourish and Elizabeth welcome prolific fic writer and copyright expert @earlgreytea68 back to the podcast to discuss her new Fansplaining article, “How U.S. Copyright Law Fails Fan Creators.” After giving a little primer on copyright, trademark, fair use, and how they all intersect with fandom, EGT discusses the ways current U.S. intellectual property law is unequipped to deal with non-monetized creativity—and how the system fails everyone but the big publishers and studios. They also discuss copyright and AI, and whether copyright claims have the potential to take down LLMs and AI tools. 

Click through to our site to listen or read a full transcript!

And an exciting note: this episode has a sponsor!! Ellipsus is a new collaborative writing tool that lets you and your co-writers/editors/betas create different drafts and merge them together. They are very anti-generative AI, and they reached out to us because they have roots in fic fandom. Ellipsus is currently in closed beta, but if you use our SPECIAL LINK, you’ll go to the top of the list. We’ve really enjoyed testing it out—and we hope this can supplant Google Docs (ugh) in our fic writing.