Sony Finds Itself In Court After Bullying Film Studio Over Supposed 'Slender Man' Copyright Infringement

from the copypasta dept

Mon, Jul 30th 2018 11:59am — Timothy Geigner

The last time we discussed Slender Man on this site, it was when two young girls stabbed their friend and blamed it on this internet ghost story, leading to the site Creepypasta feeling it needed to remind everyone that fiction is fiction and not the writings of a Satanic cult. Only briefly discussed in those writings was the origin of the Slender Man meme, which started as a Lovecraftian ghost story on the Something Awful forums by Eric Knudsen, who produced two photoshopped images of people being stalked by a faceless slender creep-bomb and added some fake quotations to make something of a story out of them. From those two photos and brief captions, the internet essentially took over, building entire stories and lore around Slender Man to the point where the whole thing is a wildly popular internet meme and ghost story staple.

So of course Sony Pictures bought the rights to the story from Knudsen and will now presumably ruin it all in a major motion picture. And that would be only mildly irritating, except Sony is also trying to bully a smaller studio, Phame Factory, out of producing its own horror movie, claiming it now has the copyright and trademark rights for Slender Man. This has resulted in Phame Factory suing Sony to get a court to declare its work not infringing.

The plaintiff in the case is Phame Factory, which had planned to digitally distribute a movie titled Flay only to get served with several cease-and-desist letters from Sony, which alleges that the main character in Flay blatantly copies the mysterious Slender Man, its bigger-budget horror flick set to be released Aug. 10. Phame Factory is now seeking a declaratory judgment that its promotion, distribution and advertisement of Flay doesn't infringe Sony's trademarks and copyrights. What's more, Phame Factory asserts that Sony's IP rights "are either indefinite, encompass free to use by all public domain property or lack the requisite legal requirements to be protectable and enforceable."

What makes this case so intriguing is the origins of "Slender Man."

There are all kinds of reasons why the court should side with Phame Factory here. The most straight forward of those reasons is that its own movie, Flay, doesn't actually directly name or pertain to the Slender Man mystique that Knudsen developed. Yes, it features a similar generic character as the "monster", a thin, faceless man. But that's about as generic as it gets in ghost stories. Hell, the whole reason why Knudsen's minimalist creation took off in wider internet culture was because of how vague a lump of clay it was for the creation of others.

And the creation of others is very much the second factor in all of this, not to mention the question about exactly what Knudsen had the rights to actually sell. The filing itself is essentially a repetition of Phame's repeated request to Sony to explain what in the hell exactly it thinks is infringing in any of this, where Sony has refused to reply with anything other than, essentially, Flay's existence. The problem for Sony here is two-fold. The bad guy character in Flay has marked differences with the Slender Man character other than a generic creepy appearance. On top of that, of all of the lore around Slender Man and that character archetype, the vast majority of it was not created by Knudsen, the person who signed over the rights to Sony.

If the Phame Factory case goes far, there could perhaps be similar exploration about who contributed what — and under what licensing scheme — back in 2009 on a message board. For now, Sony heads into a film release with an intriguing challenge to its intellectual property.

Here's the summary that can best sum up how absurd Sony's bullying is. Sony is now in court after threatening the makers of a film depicting a character that isn't the same, over depictions that aren't copyrightable generally, and over a character it bought the rights for from a person who barely created it in the first place.

Copypasta.

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Filed Under: copyright, eric knudsen, fairy tales, idea expression dichotomy, memes, slender man
Companies: phame factory, sony pictures

38 Comments

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Reader Comments

The First Word

“

With sincere respect to the Holders Series...

In any city, in any country, go to any mental institution or halfway house you can get yourself into. When you reach the front desk, ask to visit someone who calls himself "The Holder of the Master Copy". The worker will stand, then point to a door at the far end of the nearest hallway. As you walk toward the door, you will hear the sound of people talking to themselves echoing through the hall. You will not understand the language, but you will feel an unimaginable fear deep in your soul.

Should the talking stop at any time, stop and quickly say aloud, “I need clarification on Fair Use.” If you still hear silence, run out of the building as fast as you can and do not stop for anything; do not go home, do not stay at a hotel—just keep moving and sleep where your body drops. You will know in the morning if you have escaped.

If the voice in the hall comes back after you utter those words, continue on. Upon reaching the door, you find that it is unlocked. Enter the windowless room and all you will see is a person in the corner, speaking an unknown language and cradling something. The person will only respond to one question. "How do we fix copyright?"

The person will stare into your eyes and answer your question in horrifying detail. Many go mad in that room. Some disappear soon after the meeting; a few end their lives. But most do the worst thing: They look upon the object that the person is holding. You will want to as well. Be warned that if you do, the rest of your life will be filled with cruelty and unrelenting horror.

Your life will be forfeit to lawsuits that will never end, even after you die.

That object is 70 of 1998. The being known as “The Mouse” already has many others. They must never come together.

—Stephen T. Stone

”

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Ninja (profile), 30 Jul 2018 @ 12:06pm

I foresee incoherent ramblings regarding pirates and something something Masnick.

And now it occurred that we would probably have an audience if we made some movie, Psycho-style, featuring Mike dressed as a pirate stabbing some innocent music label or something. The image in my head is amusing.
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Matthew Cline (profile), 30 Jul 2018 @ 12:09pm

Not "Marble Hornets"?
I wonder why they're going after Flay rather than, say, Marble Hornets.
[ link to this | view in thread ]
Stephen T. Stone (profile), 30 Jul 2018 @ 12:12pm

With sincere respect to the Holders Series...
In any city, in any country, go to any mental institution or halfway house you can get yourself into. When you reach the front desk, ask to visit someone who calls himself "The Holder of the Master Copy". The worker will stand, then point to a door at the far end of the nearest hallway. As you walk toward the door, you will hear the sound of people talking to themselves echoing through the hall. You will not understand the language, but you will feel an unimaginable fear deep in your soul.

Should the talking stop at any time, stop and quickly say aloud, “I need clarification on Fair Use.” If you still hear silence, run out of the building as fast as you can and do not stop for anything; do not go home, do not stay at a hotel—just keep moving and sleep where your body drops. You will know in the morning if you have escaped.

If the voice in the hall comes back after you utter those words, continue on. Upon reaching the door, you find that it is unlocked. Enter the windowless room and all you will see is a person in the corner, speaking an unknown language and cradling something. The person will only respond to one question. "How do we fix copyright?"

The person will stare into your eyes and answer your question in horrifying detail. Many go mad in that room. Some disappear soon after the meeting; a few end their lives. But most do the worst thing: They look upon the object that the person is holding. You will want to as well. Be warned that if you do, the rest of your life will be filled with cruelty and unrelenting horror.

Your life will be forfeit to lawsuits that will never end, even after you die.

That object is 70 of 1998. The being known as “The Mouse” already has many others. They must never come together.
[ link to this | view in thread ]
Anonymous Coward, 30 Jul 2018 @ 12:21pm

Re: With sincere respect to the Holders Series...
Did that series come before or after The Lost Room (2006)? The premise sounds very similar.
[ link to this | view in thread ]
Anonymous Coward, 30 Jul 2018 @ 12:23pm

Re: Not "Marble Hornets"?
Probably (I haven't checked the dates) because Marble Hornets is prior art, created before Sony bought the rights, and so they would be on even shakier legal standing (if that were possible).

Also, Marble Hornets isn't a "movie" in the sense that Flay is, and therefore isn't competing in quite the same way. Sony's going after a potential direct competitor for their movie launch, attempting to ensure that nobody steals CURRENT viewership.

Frankly I'm not going to watch either movie, but it would fill my spiteful little heart with glee to see Sony fail spectacularly here.
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Anonymous Coward, 30 Jul 2018 @ 12:45pm

Re: With sincere respect to the Holders Series...
Pack up this thread we are done here.
[ link to this | view in thread ]
Stephen T. Stone (profile), 30 Jul 2018 @ 12:48pm

Re: Re: With sincere respect to the Holders Series...
According to the Know Your Meme on The Holders:

The exact origin of the creepypasta is unknown. Encyclopedia Dramatica cites the origin as the /x/ (paranormal) board on 7chan, while the online fiction wiki PPC Wikia lists the /x/ (paranormal) and /b/ (random) boards on 4chan as the possible point of origin. The earliest archived post on 4chanarchive featuring a Holders story was submitted to the /b/ board on January 1st, 2007.

[ link to this | view in thread ]
Matthew Cline (profile), 30 Jul 2018 @ 12:58pm

Re: Re: Not "Marble Hornets"?

Probably (I haven't checked the dates) because Marble Hornets is prior art, created before Sony bought the rights, and so they would be on even shakier legal standing (if that were possible).

Marble Hornets was created after the very first Slender creepypasta by Eric Knudsen, so if the rights that Sony bought hold any weight at all they hold weight against Hornets as well.

Also, Marble Hornets isn't a "movie" in the sense that Flay is, and therefore isn't competing in quite the same way. Sony's going after a potential direct competitor for their movie launch, attempting to ensure that nobody steals CURRENT viewership.

That's probably the real reason.
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Anonymous Coward, 30 Jul 2018 @ 1:09pm

Re: Re: Re: Not "Marble Hornets"?
Marble Hornets was created after the very first Slender creepypasta by Eric Knudsen, so if the rights that Sony bought hold any weight at all they hold weight against Hornets as well.

It's more that Marble Hornets has been in place, created, out there for a long while, and was never challenged by the original rights holder. The rights bought by Sony should have zero weight, in my opinion, but they would likely have even less justification against MH than they do Flay, given the history of MH in particular.

Given the lack of monetary incentive to Sony to go after MH (and yes, that's likely the main reason they are going after Flay at all) it's possible they are attempting to not point out that they've bought the rights to something that was never theirs to buy by bringing up the actual premiere Slenderman instance.

Whatever the motivations, may their greed be their downfall.
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That Anonymous Coward (profile), 30 Jul 2018 @ 1:11pm

I look forward to Sony being sued in a case of 10,000 cuts.
Somehow their lawyers decided dude who wrote a loose outline that millions of people then added onto, gave them the rights to a group creation.
Imagine having lawyers going frame by frame highlighting the various things added by different people & demanding compensation for their rights being infringed.

Sony helped kill the public domain, realized that they can't keep remaking the same 12 films, found a story online, took it as their own (What is this Tumblr?), and now find themselves on the other end of the laws they helped pervert, never expecting their theft of IP would result in the little guys ripping them apart as each demands statutory damages for their additions to the collaborative myth of the Slenderman.
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Anonymous Coward, 30 Jul 2018 @ 1:34pm

forget slender man, be afraid of Geiger man.
He will come after you. Be afraid... The monster has hockey sticks for hands, and his favorite jersey masking his face. All the while tubes from a giant artisian craft beer keg pump craft brews directly into his blood stream.
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Anonymous Coward, 30 Jul 2018 @ 1:42pm

Re: With sincere respect to the Holders Series...
The mouse createth and the mouse destroyeth.

Youtube video: Disney plans hero's death - studio C
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Anonymous Coward, 30 Jul 2018 @ 1:58pm

Re:
Sony can't keep remaking the same 12 films?

Is that why they keep remaking the same 4 or 5 films now?
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This comment has been flagged by the community. Click here to show it

fordradiocodes (profile), 30 Jul 2018 @ 2:01pm

Ford Radio Codes
We can supply radio codes for all Ford cars and vans by the radio serial number.
[ link to this | view in thread ]
Matthew Cline (profile), 30 Jul 2018 @ 2:11pm

Re: Re: Re: Re: Not "Marble Hornets"?

It's more that Marble Hornets has been in place, created, out there for a long while, and was never challenged by the original rights holder.

IANAL, but I don't think that's a problem in the case of a copyright holder.
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Anonymous Coward, 30 Jul 2018 @ 2:14pm

Copywrong.
Have I got this correct, in essence Sony have bought an idea, and are writing a new work from that idea, and are claiming that other works, written before theirs, infringes on their work.
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Stephen T. Stone (profile), 30 Jul 2018 @ 3:26pm

Re: Copywrong.
They have also claimed that because Flay features a creature similar in design to Slender Man, even though the creature is a entirely different character that does not use the same lore as Slender Man, the people behind Flay are infringing upon the Slender Man IP.
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That One Guy (profile), 30 Jul 2018 @ 3:40pm

Re:
Imagine having lawyers going frame by frame highlighting the various things added by different people & demanding compensation for their rights being infringed.

Shush you, don't give them ideas.
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tp, 30 Jul 2018 @ 4:39pm

Effort calculation..
The case obviously depends on who is spending the most amount of effort in the story. Seems someone sold sony the rights to the character designs and the stories, and it just depends upon whether the story was created by that one person, or whether the community did all the hard work. If the community is just customers of the author, then rights to the works belong to the author and he has all the rights to sell them to sony and thus sony would win the case.

On the other hand, if community or the other studio created most of the work, then obviously the rights belong to them.

So basically you just look at origins of the copyrightable elements and determine where the rights to those elements belong to. Who developed the character designs, whether the rights were transferred to sony and which parts are original designs compared to created by 3rd parties.
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Gary (profile), 30 Jul 2018 @ 5:20pm

Stories
It is almost as if storytelling is a group effort, and it benefits the entire community - not just a single company.
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Anonymous Coward, 30 Jul 2018 @ 6:20pm

Re: Effort calculation..
We can do that once you tell us whether the rights to public domain characters were transferred to Disney.

You know, because you like defending the weak, and poor Disney might suffer at the hands of copyright expiration! Such horror!
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Anonymous Coward, 30 Jul 2018 @ 6:40pm

Sony has plenty of money to sue people, thanks to people buying their shit.
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tp, 30 Jul 2018 @ 6:49pm

Re:
> Sony has plenty of money to sue people, thanks to people buying their shit.

so they worked hard, managed to ship the product to markets and its good enough that people buy it and thus they get big enough reward that they have money to sue people?

why didn't you do the same?
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Anonymous Coward, 30 Jul 2018 @ 8:02pm

Re: Re:
why didn't you do the same?

I did. Then Sony wrecked my computer with their rootkits, then sued me over songs on the CD that I legally purchased. While jackasses like you cheered them on, fucktard.
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Otto Fill, 30 Jul 2018 @ 10:20pm

Cheap publicity
I think we've found a motive for the lawsuit, Watson:

"Sony, which alleges that the main character in Flay blatantly copies the mysterious Slender Man, its bigger-budget horror flick set to be released Aug. 10."
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That Anonymous Coward (profile), 30 Jul 2018 @ 10:53pm

Re: Re:
Dude they are going after each other and leaving people alone... let them eat themselves.
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Anonymous Coward, 30 Jul 2018 @ 11:41pm

Re: With sincere respect to the Holders Series...
Oh great, you also slipped in a Borg reference!
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Anonymous Coward, 31 Jul 2018 @ 12:03am

Re: Effort calculation..
But what about the effort two different individuals put in to create stories based on the same Ideas?
What about originality in the story?
What happens when somebody put in kindreds of hours to produce crap, and another dashed of a brilliant version starting from the same ideas in a few hours?

Whats wrong with letting the market decide which is the most valuable work?
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Anonymous Coward, 31 Jul 2018 @ 1:01am

marble hornets will most likely be better than the films
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tp, 31 Jul 2018 @ 1:16am

Re: Re: Effort calculation..
> What happens when somebody put in kindreds of hours to produce crap

You can see the hours from the quality level of the work. If you declare it crap simply because it costs more, it's your loss. What happens is that pirates get interested in the work and try to freeload it.

> and another dashed of a brilliant version starting from the same ideas in a few hours?

Since he didn't spend any time on it, the quality will suck like hell. Pirates wont be interested, so he can actually sell the product when his product isn't available everywhere.
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Anonymous Coward, 31 Jul 2018 @ 1:35am

Re: Re:
'cause he ain't japanese?
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Ninja (profile), 31 Jul 2018 @ 6:39am

Re: With sincere respect to the Holders Series...
You, sir, deserve +1000 internets for this masterpiece.
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The Wanderer (profile), 31 Jul 2018 @ 7:14am

Re: Copywrong.
As best I can parse it, Sony appears to be saying that all the other works derived from the original "Slenderman" piece by Knudsen were infringing Knudsen's copyright (and only got away with it because he didn't care to enforce his copyright), and that now that Sony owns the copyright to that work, all those existing works are still infringing what is now Sony's copyright (which Sony does now choose, at least in some cases, to enforce).
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That One Guy (profile), 31 Jul 2018 @ 9:13am

Re: Re: Re:
Ah, it seems I got your comment backwards. I thought you were talking about Sony or another studio going after other people for infringement, not those involved in the creation of a story cutting them to ribbons over each individual contribution.
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Stephen T. Stone (profile), 31 Jul 2018 @ 3:16pm

I wish I could accept those, but whoever wrote “The Holder of the End” deserves more credit than I. They wrote the original; alls I did was change a few words around to make a silly parody.
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Anonymous Coward, 31 Jul 2018 @ 9:52pm

Re: Re: Re: Effort calculation..
So you want products to be sold for money to suck?
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Seegras (profile), 1 Aug 2018 @ 1:38pm

Re:
In "Permanence" by Kurt Schroeder, on of the societies involved is the "Rights Economy". It's, in a remote sense, about this. Please read, you'll love it.
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bhull242 (profile), 1 Sep 2018 @ 7:54pm

Re: Re: Re: Not "Marble Hornets"?
Regarding the fact that Marble Hornets wasn’t a movie, while technically true, there was an actual film produced that’s ostensibly based on the Marble Hornets series, so why hasn’t Sony gone after that?
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