Why Isn't There A Fan-Use Exception To Copyright Law?
from the questions-questions-questions dept
Cory Doctorow does a nice job pointing out yet another ridiculous result of copyright law these days: criticism is considered fair use, but promoting the works as a fan is not in many cases. He talks about some of the situations (similar to many we've written about) of entertainment companies cracking down on fans who build tributes to the works that they love. This seems like the sort of thing that copyright law should encourage: having fans express their appreciation for works and sharing it with others? Yet, we don't. Instead, there are protections for critics. So you're in better position to do something with the work of someone else if you hate it, rather than if you love it. Doesn't that seem odd? And, on top of that, it raises a good question: should "fan use" be considered a type of "fair use"?Thank you for reading this Techdirt post. With so many things competing for everyone’s attention these days, we really appreciate you giving us your time. We work hard every day to put quality content out there for our community.
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Filed Under: copyright, criticism, fair use, fan use, praise
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Labels/publishers on the defensive
How could that POSSIBLY be anything but good for the record company? These guys made a film score seem cool and trendy. I would be very surprised if it didn't sell a couple copies of the score.
The labels and publishers are in such a defensive posture right now that they can't see the value that these types of fans bring to their products. They also are also actively looking to squeeze every dime out of everyone they can find.
Defense is not a sustainable position for a business. Eventually, the one's who are on the OFFENSIVE will overtake them and render them obsolete(not that fans are trying to take these institutions down - at least not the fans we're talking about.)
Businesses need to be proactively adapting and finding new ways of adding (or in this case, simply allowing others to add) value to their product offering. That's why the majors will fail.
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That is so fricken funny I literally laughed out loud!
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The whole 'supported by ads' argument is a red herring. Notwithstanding that criticism is considered fair use, most critics provide their opinion in a medium that is supported by ads - TV and Radio commercials and ads in newspapers and magazines. Why is it okay for them to make some money but not for a fan?
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Fuckin' SPOING
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Thanks Cory!
And why do people get so wigged out when someone else makes a buck? You weren't there firstest with the mostest. Shut the hell up already.
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I should think the reason for the difference is obvious
The fact that we even have to raise the question of whether positive sites and such deserve protection shows how irrational the rights holders have become.
One could perhaps use this irrationality to raise a defense: Yes, my site *looks to the naked eye* like a fan site, but the rights holder *saw through that*. Who better to understand the nature of what I've done than the rights holder? Who can question is judgement and understanding of his own material? He's right; I'm ripping his stuff apart. I admit it. I'm a critic. One dose of fair use, please. :-)
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There are good reasons that a fan website is not fair use.
Ronald J. Riley,
Speaking only on my own behalf.
Affiliations:
President - www.PIAUSA.org - RJR at PIAUSA.org
Executive Director - www.InventorEd.org - RJR at InvEd.org
Senior Fellow - www.PatentPolicy.org
President - Alliance for American Innovation
Caretaker of Intellectual Property Creators on behalf of deceased founder Paul Heckel
Washington, DC
Direct (810) 597-0194 / (202) 318-1595 - 9 am to 8 pm EST.
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Re: For-Profit Bullshit
Ronald J Riley wrote:
And a for-profit TV network broadcasts extracts from a movie in a news/review program, and uses that to make a profit from other sales, like ads. But nobody sues them over that. So what’s the difference?
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Help for the poster
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Not quite. But nice try. Fair use has a number of limitations that do not allow traditional fan use.
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I believe you will find that while those of us who deal with copyright law each have views about the scope of fair use, there are a sizeable number who hold "liberal views", though in all fairness they are generally not at the margins advocated by Mr. Lessig.
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Moreover, the prefatory language in the statute (e.g., education, criticism, etc.) is open-ended/exemplary and does admit to discretion on what other uses may likewise be deemed relevant and within the ambit of a fair use defense.
In my view a far more difficult hurdle for an alleged infringer to overcome is state and federal trademark and unfair competition law. Even if a use is deemed fair, there still remains an independent basis under law to present a strong challenge on independent legal grounds.
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"criticism: the art of evaluating or analyzing works of art or literature ; also : writings expressing such evaluation or analysis "
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So perhaps there are occasions when fan made compliments could be argued to be positive critiques of a work?
It couldn't be expected to apply to all fan work because derivatives, even though ebullient and obviously complimentary to a work may not be able to be described as a critique.
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So what's the difference ....
How about if the fan sells the recording? How about if the fan gives the recording away (Harry Fox doesn't care whether the cover is sold or not)? How about if someone pretending to be a fan sells a cover version? How about if a commercial artist who is genuinely a fan releases a cover version?
There are no easy answers to these myriad possibilities, but the easiest way to avoid addressing them is to go the way the law has gone ... not that doing so is satisfactory, mind you ...
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First, thanks for the insult. It's always a sign that I'm a lot more on target than otherwise. And I fail to follow your logic as to how this leads to more lawsuits. If the realization is that pure fan use will not result in a successful lawsuit, lawyers will have a lot more incentive to think carefully before filing an expensive lawsuit.
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Up until 2 years ago, I was not interested in anime or manga. My daughter started watching anime on TV and then started reading fanfiction. I'm a nosy mom, so I read one of the stories she was reading...as a result, I became a fan of that particular anime, which led to me buying all six seasons on DVD as well as the 30+ manga that have been published...and it opened my eyes to other anime/manga, and I have since purchased more DVDs and manga both for myself and my daughter and will continue to do so.
None of which would have happened had there not been fanfiction.
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