Category Archives: Copyright Confusion

Copyright Confusion: Cease & Desist – Everyone’s Friend?

(To ensure there’s no confusion here: I am not a lawyer, I am a writer who has an interest in this subject because I would like to not be sued or ripped off. Noble motivations, I assure you.)

As I’ve been saying for a while, intellectual property laws aren’t exactly as clear as everyone thinks. They’re surprisingly subjective at times, even going so far as to make it possible for straight up piracy to sometimes be considered more legal than some non-profit fan productions. The parts of the legislation meant to protect those fans are also pretty subjective and provide no real protection until entering prohibitively expensive court proceedings. There are some corporations who have, either intentionally or unintentionally, abused this system as a result – some even lobbying for it. And, unfortunately, the whole thing gets murkier over time as it gets constantly reshaped by lawsuits – sometimes permanently and in unexpected fashion.

So it was with a great sigh of relief that the lawsuit between CBS Paramount and Axanar Productions ended up settling out of court. Regardless of what side of the issue you fell on, the lawsuit was actually pretty important. The core of the issue wasn’t so much the legality of Axanar itself but what the ruling would do to copyright laws. Even those opposed to Axanar were dreading the potential ruling as it would have left a mark on fan productions and intellectual property rights for years to come. If the court ruled in favor of CBS Paramount, fan-productions as a whole would have been irrevocably damaged and a legal framework would have existed to apply that to anyone’s properties. Meanwhile, should Axanar have come out on top, it would have been yet another in a long line of loopholes letting certain individuals do whatever they wanted so long as they could afford the lawsuit. Either way, whoever won, every other creator out there would have lost in some fashion.

It was because of this that people like myself were confounded by the lack of a Cease & Desist prior to the lawsuit actually being placed. Though incredibly unpopular, the Cease & Desist letter is generally the go-to route for situations like this and the lack of one is generally a strange anomaly that raises questions. Some were under the impression that it was because CBS Paramount was obligated to sue, but that is actually not quite true and is based on assumptions from other IP laws. Instead, it was just something they decided to forego. Supporters of CBS’ actions pointed out that the C&D isn’t a legally binding act.

But, of course, that’s exactly why the C&D is usually the first move… Continue reading Copyright Confusion: Cease & Desist – Everyone’s Friend?

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Copyright Confusion: Trademark Edition!

(To ensure there’s no confusion here: I am not a lawyer, I am a writer who has an interest in this subject because I would like to not be sued or ripped off. Noble motivations, I assure you.)

Copyright, it’s a funny thing. Most people have a basic understanding of it, but that understanding tends to be fairly black and white. Some people assume that it should be mostly common sense, but that’s not always true. Things that everyone tends to “know” about the system are usually pretty subjective and can be swayed by a good legal team. And other things that people “know” may be flat out wrong in some cases.

When I wrote the post that eventually got this discussion rolling, one of those things people “knew” is that a copyright holder is obligated to sue to defend their copyright. This is an opinion that a lot of people had based on a misunderstanding and outdated information. Once upon a time, it would have been totally true (and still is in some circumstances and locales). But one of the few things about modern US copyright law that I really like is that we currently don’t require a copyright holder to do anything to maintain their copyright. You can register, but that registration is mostly meant for your future legal cases if you want to draw damages. The minute you publish original content in the US, you own it, no questions asked. A failure to register doesn’t lose you the copyright, it just makes your lawsuits a little trickier.

Instead, lawsuits are generally used to either stop an action, punish a violation, or to ensure that the right people are being paid for a work. These are entirely voluntary. That’s not to say that filing the lawsuit makes you a dick, not at all, you should have the right to defend your work. Rather, when someone says that the lawsuit was an obligation, they’re working under a false assumption. Corporations aren’t “obligated” to protect their copyright from fear of losing it since it’s nearly impossible to lose a copyright. Their lawsuits on copyright are entirely about ensuring that no one else profits from their work or prevents them from profiting on it themselves.

On the other hand, trademark law tends to be… Continue reading Copyright Confusion: Trademark Edition!

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Copyright Confusion: Macross Edition!

(To ensure there’s no confusion here: I am not a lawyer, I am a writer who has an interest in this subject because I would like to not be sued or ripped off. Noble motivations, I assure you.)

Copyright, it’s a funny thing. Having recently stepped into a hot debate, I found myself watching people argue with certainty over the nature of copyright law. Amusingly, most of these people were so absolutely sure they knew how copyright law works that you’d think they were all lawyers. For or against, both sides of the debate thought they knew for a fact what the law said on the subject. In fact, both were pretty adamant that the other side were thieves. And they “knew for a fact” because, according to these well-meaning souls, copyright is a simple to understand system that follows common sense. So, once I stopped laughing, I started writing on the subject.

As I’ve been pointing out ever since, there isn’t always as clear a picture as people like to believe there is. In some very black and white areas, it works – you can’t just duplicate someones work or distribute pirated copies (usually). But once you get to the matters of intellectual property, you’d be amazed how hard it is to parse out the solution. The system as it stands today has many glaring flaws that make it difficult to trust that it’s always going to work. Certain provisions within the copyright and trademark laws are intentionally murky, some things are entirely subjective, and most of the time you can’t tell what the truth is until a judge decides. This results in a system where no one is really able to get anything clarified until a lawsuit comes into the conversation. Unfortunately, the little guy can rarely afford that, so the big boys usually win.

In the end, most of us depending on the law to protect our works are depending on people acting in good faith. Generally, we like to hope that people are honest players. We like to imagine that legal action is like a big red button behind a glass case you break only in case of emergencies. In a grey situation, we like to imagine that people stop to hesitate and consider whether they should actually do it. No one would blindly and willfully hit that button just for the sake of hitting it, right?

Wrong.

A plethora of people abuse the system to lock it in their favor even if it shouldn’t be. A great example would be the situation mentioned last time when Saban, owners of Power Rangers, sued a game parodying Super Sentai and other Tokusatsu series. This game existed well within fair use, being a parody based on an entire genre that used no copyrighted or trademarked materials. But, apparently, when you see a team of colorful characters climbing into a bizarre machine – Saban wants you to think of them.

clowns

It’s a ridiculous situation, but one that happens all the time. Some companies go out of their way to sue for things they have no right to sue over. They’ll plant themselves on a copyright, trademark, or patent and then use that to strong-arm other companies. But, to be fair to Saban, they do have some legal claim to the IP and that makes them a lesser of evils. Instead, to find a really glaring example of copyright abuse in a similar situation, I’d like to tell you about a franchise from Japan and why a lot of you probably haven’t heard of it before… Continue reading Copyright Confusion: Macross Edition!

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Fair Use: Parody, Porn, and Games (Oh My)

(To ensure there’s no confusion here: I am not a lawyer, I am a writer who has an interest in this subject because I would like to not be sued or ripped off. Noble motivations, I assure you.)

Last month I mentioned something about an upcoming Star Trek production and it stirred a lot of debate about the legality of fan films. At the time, I wasn’t even trying to claim anything about legality because, frankly, that can’t be determined until after the lawsuit’s long over. And, while people are incredibly passionate about that debate, I’m not actually so angry that I could go on talking about the production for much longer. It’s not that I don’t care, I do, but the emotion that would best describe my reaction would be “disappointment”.

Still, there is something about the topic that I am fairly passionate about. Long time readers could be confused how I could come out so adamantly against the likes of Shia LaBeouf for plagiarism and copyright infringement but defend fan-works like Axanar so often. The two points of view may be seen as contradictory in the eyes of some, but they’re all part of a general philosophy I have regarding copyright. Basically, thieves should be treated as such, but fan works need not necessarily be considered thieves.

types-of-shia-labeouf
Labeouf, however, may require charts

I believe in a system that protects creators, doesn’t naturally favor the wealthy, and provides some limited protection for fan productions as creators in their own right. The way I’ve seen it for a long time, that’s not quite what we have. Instead, our system tends to bend to the whims of whoever can afford the best legal team. And, because of that, I’m often disappointed in general at the way the system’s carried out. To put it another way: guys like Shia LaBeouf get away with it because the system we have now lets them while even the most innocent of fan productions could be shut down at a moment’s notice. Would I consider Axanar as “the most innocent”? No, but that’s why I’m more disappointed than angry.

So it’s not that I want to tear down the copyright system, far from it, creators like me need more protection from the likes of LaBeouf. However, when I look at fan productions I don’t see the enemy so much as I see people who are either trying to get started as creators or trying to show their love for the work of another creator. Plagiarism and copyright infringement are matters of theft, but I don’t feel most fan productions should fall in that category and right now the law basically says they do.

What I’d want is clear and common sense legislation to guide fan works in a way that won’t hurt the original creators. Many believe that legislation already exists and mention repeatedly that’s the whole point of “Fair Use”. But, as much as people would want to believe Fair Use provides that common sense protection for fan works, it really isn’t as clear as people would think it is. The fact of the matter is, even seasoned professionals often overlook the fact that Fair Use, like most of copyright law, is incredibly subjective and, frankly, has lost some of its power in the last few years.

Unless, of course, you can afford to defend it… Continue reading Fair Use: Parody, Porn, and Games (Oh My)

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The Legality Of Fan Works

(Edited on 8/26/16 to make a couple points clearer. Lesson to the kids at home: if you’re on medication, don’t forget to have someone check your work.)

So, an interesting thing happened last week. During a hazy day where I didn’t really feel like doing my planned blog I instead decided to shoot from the hip. Throwing together a blog on a topic I’d recently discussed with friends, I published it and figured that would be the end. Turns out, according to people on Twitter, mentioning Axanar is like yelling fire in a theater. Suddenly there was a swarm of people unlike anything this blog has ever seen before. As I was publishing last Wednesday’s post I looked up to see that a post I figured wouldn’t go anywhere suddenly had more traffic than the rest of my blog combined.

lol
Whups, kicked a hornets’ nest

Now, half a lifetime on the internet has taught me three very important lessons about expressing personal opinions. First, never debate people in a format with a character limit, there in lies the path to madness. Second, never jump into the middle of a heated debate in a comments section, they will eat you. And, third, if you do see someone make a valid point, acknowledge and respond to it in a controlled setting. Thankfully, I own the setting.

Continue reading The Legality Of Fan Works

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Discovery and Axanar

There are times I can admit I’m wrong and I’m happy to say I was wrong about the future of Star Trek. For a while, after watching one of my favorite shows die a slow death, I figured the franchise was done. Even when it was given a film reboot, I expected a cheap cash-grab to cap it off before the thing flat-lined. Needless to say, I’m actually kind of surprised that Star Trek is back on its feet in time for its 50th anniversary. It’s probably one of the few times a reboot has actually successfully relaunched a franchise. And it’s especially surprising given the guy who pulled it off.

Anyone who has followed this blog over the last few years will likely remember that I’ve taken a few quick shots at JJ Abrams and his ideas of storytelling. I’m not against mystery plots in speculative fiction worlds, I’ve written two so far myself, but the way he goes about it is less like telling a well crafted story and more about telling a story, leaving out half the details, and then telling you that was the point. He’s basically three flops away from being the next M Night Shyamalan.

shyamalan-newsweek-cover
For those who think the comparison is unfair

But, I’ve got to give him credit for this: he did manage to revitalize Star Trek and it was looking like that wasn’t going to happen for a while. After Star Trek: Enterprise suffered an ignoble death at the hands of UPN and Nemesis gave the movies a shot to the kidneys, there really wasn’t a lot of reason to hope for the future of Trek. The 2009 reboot, in a lot of ways, was a Hail Mary to keep the property running. Need evidence? The 11 years since Enterprise went off the air has been the longest time without a Trek show on TV since the gap between TOS and TNG. And what made TNG possible? The Star Trek movies did damn well in the 80s too.

So for all the things I disagree with Abrams on, I have to admit that he gave the franchise a shot of life it needed at a fairly dark time. Now, Star Trek news is all over the place and people are actually excited about the property again. Star Trek Beyond is getting pretty solid reviews despite the turbulence involved in getting it together. There’s a new show coming to air in 2017, Star Trek: Discovery, and a lot of fan communities are getting excited about it – even new viewers, which is something the franchise hadn’t had for years before Abrams’ movie. And recently, as of this writing, the internet is buzzing again with news about Discovery’s showrunner, Bryan Fuller, giving us an insight into what he plans to do with the series next year.

Oh, and Fuller also might have accidentally confirmed why CBS sued Axanar. Continue reading Discovery and Axanar

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