Why Isn't There A Fan-Use Exception To Copyright Law?

from the questions-questions-questions dept

Fri, May 15th 2009 2:25pm — Mike Masnick

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"?

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Filed Under: copyright, criticism, fair use, fan use, praise

29 Comments

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refe, 15 May 2009 @ 3:02pm

Labels/publishers on the defensive
Perfect example: some band did a tribute to John Williams by singing through the Star Wars trilogy using a re-edited version of the famous score. The record company who owned the rights forced them to take it down. The title of the video was "John Williams is the Man" or something like that.

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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Ima Fish, 15 May 2009 @ 3:17pm

"criticism is considered fair use, but promoting the works as a fan is not"

That is so fricken funny I literally laughed out loud!
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Anonymous Coward, 15 May 2009 @ 3:27pm

Fans should just claim their tributes are positive critical commentaries.
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Anonymous Coward, 15 May 2009 @ 4:05pm

fans sites violate copyright all over stolen images audio and video often supported by ad sales google ads or similar. they are not promoting the product just making themselves important and make some money.
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HB, 15 May 2009 @ 4:42pm

Fuckin' SPOING
SPOING I call on this. Ask J and Mo.
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Anonymous Coward, 15 May 2009 @ 4:44pm

Re:
Critics, on the contrary, do not. They do it to protect the populace at large from harming themselves from to bad artists.
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HB, 15 May 2009 @ 4:44pm

Re: Re:
from exposure, dammit, that's what I meant.
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ChurchHatesTucker (profile), 15 May 2009 @ 4:46pm

Thanks Cory!
I've been saying the same thing for years.

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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Luci, 15 May 2009 @ 7:10pm

The thing is, everyone thinks criticism is /only/ negative feedback. This isn't necessarily true. Literally, criticism is 'the art of evaluating or analyzing works of art or literature' (Merriam-Webster definition). So even if it /is/ a fan site, if it is a critique of the work, then fair use should apply.
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Jerry Leichter, 16 May 2009 @ 3:12am

I should think the reason for the difference is obvious
In a rational world, a rights holder would be happy to see fan sites and similar praise, but might well want to shut down criticism. So it makes sense for the law to protect the latter but ignore the former.

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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Ronald J Riley (profile), 16 May 2009 @ 6:18am

Copyright holders often produce serial publications and have planned how the story line will evolve over time. Fan web sites can interfere with this. fan website are often used as loss leaders for commercial purposes. IE, the FREE content rides the coattails of the copyright holder's intellectual property rights and is used to generate a profit on other sales.

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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Michael Fricklas, 16 May 2009 @ 8:13am

Help for the poster
The fair use defense to copyright is available equally for positive and negative criticism. ("Criticism" doesn't mean that it has to be negative. A positive review is protected equally.) There are several fair use factors in the law, and they are listed (and explained a bit) here. http://www.copyright.gov/fls/fl102.html Also check out wikipedia's entry on fair use - http://en.wikipedia.org/wiki/Fair_use where there is a lot of useful information From a copyright law perspective, the issue is whether more of the work is used than is needed for the critique. Once you fail fair use, though, it's up to the copyright owner to decide whether the work goes forward. That said, many fan sites are allowed to remain even if they aren't fair use as the copyright owners appreciate the fandom - provided it doesn't unduly interfere with their ability to commercially exploit their work. (This post represents my personal pov, and not necessarily Viacom's)
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Vincent Clement, 16 May 2009 @ 8:16am

Re:
There is nothing in copyright law that says the minute you earn a penny from someones content that you are infringing on their copyright.

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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capnjack (profile), 16 May 2009 @ 8:57am

Re:
Ronald J. Riley - what you're basically saying is that the second a fan makes any profit off what they're promoting, it becomes wrong. This is an entirely ludicrous claim, since it's a win-win situation. The fans aren't doing it for the money, they're doing it to promote what they love. If they make money in the process, that isn't money lost on the part of the original content creators.
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Anonymous Coward, 16 May 2009 @ 9:05am

The already is a "fan use" exception built into copyright law. It goes by the name "fair use" as defined at 17 USC 107.
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Mike (profile), 16 May 2009 @ 12:16pm

Re:
The already is a "fan use" exception built into copyright law. It goes by the name "fair use" as defined at 17 USC 107.

Not quite. But nice try. Fair use has a number of limitations that do not allow traditional fan use.
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AnonCow, 16 May 2009 @ 12:34pm

Why is criticism assumed to be only negative? Although criticism is usually assumed to be negative, there is no negative requirement. So, if negative criticism is allowed under "fair use" wouldn't a positive criticism be also allowable?

"criticism: the art of evaluating or analyzing works of art or literature ; also : writings expressing such evaluation or analysis "
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Anonymous Coward, 16 May 2009 @ 12:56pm

Re: Re:
Not sure I agree. Yes, there are court decisions where fair use has been applied in a very limiting manner. This is not, however, a universal rule.

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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Anonymous Coward, 16 May 2009 @ 1:32pm

Re: Re:
they aint extended they aint directly profiting they are writing original commentary using only small examples of original work to support their opinions. fan sites 100% the artist fan only adds in they are great so pretty nice song. watch or read ebert movie review and compare to fansite. difference is easy to spot even for a moron or a judge.
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Easily Amused, 16 May 2009 @ 1:35pm

Re:
If your contribution to the discussion is shorter than your signature block, just don't hit the reply button...
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Fentex, 16 May 2009 @ 6:27pm

To be a critic is not neccesarily to disapprove. A person can positively critique a work.

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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Lawrence D'Oliveiro, 16 May 2009 @ 9:12pm

Re: For-Profit Bullshit
Ronald J Riley wrote:

...the FREE content rides the coattails of the copyright holder's intellectual property rights and is used to generate a profit on other sales.

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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PRMan, 17 May 2009 @ 8:15am

Re: Re: For-Profit BS
The difference is that the movie studio PAID to have their clips on that show.
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Anonymous Coward, 17 May 2009 @ 10:12am

Re: Re:
Just a comment to note that 17 USC 107 specifies four factors that must be considered, but the statute is clear that other factors may likewise be considered.

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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Hugh Brown, 17 May 2009 @ 5:57pm

So what's the difference ....
between a cover version and a fan promotion?

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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MadJo (profile), 18 May 2009 @ 1:00am

Re: Re: Re:
Still, it's okay for Ebert to completely destroy a movie with references in the reviews, but a fan is not allowed to make a wallpaper based on the same movie?
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ASH, 18 May 2009 @ 1:38am

There's already a fair use exception. There's already a parody exception. Now you want a "fan use" exception? Apart from being just stupid, it's a non-solution. All the lawsuits would simply be about whether it's infringement or "fan use." And, since by definition (whatever that is) these people would be "fans"--ie, not professional filmmakers, writers, etc.--they wouldn't have the money to defend against the lawsuits anyway. So, congrats, now you've got even more copyright litigation.
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Fan, 18 May 2009 @ 6:15am

I'll admit, a lot of the discussion over copyright and fair use and stuff is over my head, but I'm learning. However, I just wanted to contribute an example of what it seems like the original article was trying to point out.

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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Mike (profile), 18 May 2009 @ 10:39am

Re:
There's already a fair use exception. There's already a parody exception. Now you want a "fan use" exception? Apart from being just stupid, it's a non-solution. All the lawsuits would simply be about whether it's infringement or "fan use." And, since by definition (whatever that is) these people would be "fans"--ie, not professional filmmakers, writers, etc.--they wouldn't have the money to defend against the lawsuits anyway. So, congrats, now you've got even more copyright litigation.

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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