Did German Copyright Law Really Kill A Fan Fiction Film?

from the time-to-update-your-laws dept

Tue, Nov 6th 2007 7:20pm — Mike Masnick

The concept of "fan fiction" represents an interesting challenge for copyright law. Most copyright laws don't take into account the idea of fans creating new works involving characters or worlds that they like -- as such a thing just wasn't practical until recently. However, thanks to the rise of tools that make the creation of creative works easier than ever before, it's become a bigger and bigger question. In Germany, the problem has been highlighted by fans of the board game Warhammer 40,000 who spent time and money to create a fan film based on the game. Unfortunately, thanks to German copyright law, the film can not be shown. Apparently, they can't just say it's okay without losing all rights to the Warhammer brand. Basically, according to the article the company can assign the copyright to another party, but it's a complete assignment, meaning that the game maker no longer has those rights any more. This sounds quite strange, as it's hard to see how any copyright law (or trademark law) would function properly if you can't license things selectively for specific purposes. The gamemaker apparently feels bad about the result, and doesn't seem to mind the idea of the fan film, but claims that under the law, it can't allow the film to proceed. This seems to clearly go against the very point of copyright law, which shouldn't require the holder of a copyright to ban its use in other cases. If there's someone out there who can explain the specifics of German copyright law, that would be great -- as the story doesn't make much sense. Can there really be no licensing of content without assigning the entire copyright? If that's truly the case, then hopefully people will realize it's time to update copyright law to take into account our more modern communications infrastructure. Update: In the comments someone with a familiarity in German copyright law suggests that the company needs to find a new copyright lawyer -- as it should be able to allow this movie to go forward.

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Filed Under: copyright law, fan fiction
Companies: warhammer

14 Comments

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Le Blue Dude, 6 Nov 2007 @ 9:27pm

Maybe it's a trademark issue?
Trademark and copyright are similar but different. Maybe someone confused trademark with copyright? If you don't defend a trademark you lose it.
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Mike (profile), 6 Nov 2007 @ 10:11pm

Re: Maybe it's a trademark issue?
Trademark and copyright are similar but different. Maybe someone confused trademark with copyright? If you don't defend a trademark you lose it.

That was my initial thought too, but the article clearly states that it's a copyright issue.
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Anonymous Coward, 6 Nov 2007 @ 10:32pm

Interesting case, and Games Workshop (the UK company that owns the rights, and created, Warhammer and Warhammer 40,000) has a track record of being pro fan everything. They even encourage fan fiction, at the very least in literary works. It's a big part of the hobby.

This sounds more like a case of poorly worded laws. For sure, the intent seems to be different than the effect.
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Max Powers at http://ConsumerFight.com, 6 Nov 2007 @ 10:38pm

No control not right
So you have no control how your copyright may be used by others? This does not make sense. I would think as the owner of said copyright you would have the freedom to grant a limited license for use in any way you see fit.
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Shaun, 6 Nov 2007 @ 11:13pm

Couldn't Games Workshop just "hire" the fan group for like $1 to produce the film for them (Games Workshop owning the copyright on the film) and then "pay" them another $1 to distribute it as advertising? Wouldn't this get around the copyright law? And yes I do see the irony of a copyright holder needing to work around copyright law to allow the production of a work based on their own copyrighted work...

On a side point Warhammer 40,000 isn't a "board game" it's a turn based "tabletop game" where players or "hobbyists" assemble and paint minitures to play with. ie kinda army-men with a rich backstory and ruleset including statlines for the different models etc to put it simply.
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zcat, 7 Nov 2007 @ 12:18am

'defend' a trademark
"I have sworn an oath on my life blood, None may pass without my permission!"

"Well, may we have your permission then?"

"...uhhhhm... yes?"

Defending a trademark doesn't mean you have to deny all use of your trademark. For example rather than the usual cease and desist letter, Linden Labs granted getafirstlife.com "a nonexclusive, nontransferable, nonsublicenseable, revocable, limited license to use the modified eye-in-hand logo".

I'm not sure how different things are under German law, however..
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NedLudd, 7 Nov 2007 @ 1:25am

Perhaps this law is about protecting the consumer, rather than the creator? It was no doubt formulated with written works in mind and in an age before mass media; what Baudrillard might call the era of the counterfeit. Imagine going to see a Shakespeare play and finding that he had licensed a lesser playwrite to pen it. Apart from anything else this could be construed as plagarism.
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Meinnamehier, 7 Nov 2007 @ 2:17am

Someone is confused
In german copyright law, there are two different concepts: "Urheberrecht" and "Nutzungslizenzen" (or "Verwerungslizenzen")(ha!).

Urheberrecht states that whoever created a work of art (or design or media or whatever) has certain rights she can not give away.

However, one can give "Nutzungslizenzen" (usage licenses) to someone: They right to use that art or media or design for certain purposes, such as making money with it.

That's what happens when you write a book: You are, and will always be the author of that book, but you can grant the publisher the rights to publish it and collect money for the publication.

Those rights can be exclusive or non-exclusive, limited or unlimited (regional, temporal, etc.).

So, of course, the game publisher could give a non-exclusive right to create a movie to the fans, they can even state that it is explicitly forbidden for the fans to make any money with it.

I really don't see why the publsiher should have any problems - except in finding a better lawyer.
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Anonymous Coward, 7 Nov 2007 @ 3:12am

Re: Someone is confused
I really don't see why the publsiher should have any problems - except in finding a better lawyer.
Another possibility is that the publisher really doesn't want the film to be shown but doesn't want to admit it for fear of alienating fans. So to hide their true reasons they are trying to lie about the law. Happens all the time.
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Benefacio, 7 Nov 2007 @ 3:44am

Money grubbing corporate scum!
Well, the FANS could just assign the rights to the film to the company for free; unless of course they are not FANS but are money grubbing corporate scum in disguise.

I am also surprised Mike missed this opportunity to educate budding film producers that might be reading this by explaining how giving away the fan film to the company in charge of the copyright would enhance their career by getting their work out there.

And Mike, the principle behind this is not new, it has existed since the first days of printing, which pre-date copyright laws by a good bit; only the technique is new.
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Anonymous Coward, 7 Nov 2007 @ 4:38am

Why doesn't the company just buy the film, for a small amount, and then release it on the web for free?
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comboman, 7 Nov 2007 @ 7:49am

Fan fiction is new?
Most copyright laws don't take into account the idea of fans creating new works involving characters or worlds that they like -- as such a thing just wasn't practical until recently.

Huh? Fan fiction has been around for as long as popular culture has existed. Laws didn't address it because it didn't seem like a threat to copyright holders until the internet allowed fans to spread their works widely to other fans.
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Petréa Mitchell, 7 Nov 2007 @ 9:21am

An error in the article...
...which I suspect was caused by an overzealous BBC copyeditor: The proper name of the game in question is "Warhammer 40K". (Which, as we all know, should work out to 40,960 anyway... :-)
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smith, 9 Apr 2009 @ 12:14am

Warhammer Gold
The concept of "fan fiction" represents an interesting challenge for copyright law. However, thanks to the rise of tools that make the creation of creative works easier than ever before, it's become a bigger and bigger question.
==============================================================
smith
Warhammer Gold
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