Join The Fan Fiction Deep State And Watch This Latest Video That Addison Cain Really Doesn't Want You To See

from the legal-bully dept

Last month we had a post about wolf kink erotica writer Addison Cain (pen name) and her abuse of the DMCA which we had first written about in May, but which came up again after YouTuber Lindsay Ellis did a fantastic video analyzing the entire case. If you haven't seen that, here it is:

The reason we wrote about it again last month was that after Ellis posted her video, a lawyer named Tynia Watson had sent Ellis what appeared to be one of the stupidest legal threat letters I've ever seen (and I've seen a lot). Ellis only revealed a brief portion of that letter, but that was enough.

Now, in a new video, Ellis describes all of the nonsense that has happened since then, which goes super deep in the weeds on a variety of things. You can watch the whole thing here:

I'm not going to go over everything in the video because (1) you should watch it and (2) a bunch of it is super crazy and I don't even want to start to think about figuring out how to explain all of the background necessary. Instead, I'm just going to focus on the legal threats of Tynia Watson, who is, somehow, an actual lawyer, meaning she should fucking know better than to send such bullshit conspiracy-theory laden emails to basically everyone.

As we noted, the original letter from Watson seemed to be claiming both copyright infringement (on the basis that Ellis quoted a few short segments in an obviously fair use manner) and "numerous false statements" that I could see no evidence of. In fact, Ellis' reporting got me to go back and read through a whole bunch of documents in one of the lawsuits that the video was about, and discover how Cain had insisted, repeatedly, that it was her publisher who filed the lawsuits and she had nothing to do with it -- though in discovery in a different lawsuit, it came out that Cain was in the driver's seat through much of this, telling her publisher to send the (bogus) DMCA notices, and then later telling her publisher how she was going to "hide behind" them. In fact, Cain got dismissed from one of the lawsuits on the basis that the DMCA notices were all sent by the publisher. That's kind of a big deal.

Anyway, Watson then started sending more threat letters, including to Patreon and YouTube, to try to get the video taken down. Any real copyright (or defamation) lawyer should be embarrassed that Watson is also a lawyer, because these letters are... bad. You can see them in the video (so I don't have full copies to post here, as I normally would). First, Watson sent a takedown to... Patreon. Even though the video was hosted at YouTube. Ellis, like many YouTubers and podcasters, uses Patreon as a revenue source, but there's little reason to target them for copyright infringement other than being vindictive. Patreon told Ellis to go through the standard counternotice process, but did ask her to remove the link to YouTube from her Patreon post for the requisite 10 days under the DMCA to retain its safe harbors (and then relink the video). But then it also told Ellis that if this did go to court, it would totally back her up (FWIW, Patreon has some great people who work on this stuff, so I'm not surprised to see them stand behind their user like that).

Then, YouTube notified her that it had also received a takedown from Cain. YouTube went even further and said that it didn't see how the video was infringing at all, and had rejected the takedown demand. Ellis seems surprised about this and says that she's never heard of YouTube not complying with a takedown, but it actually happens reasonably often. Despite all the mess with things like ContentID, YouTube's legal team does take fair use seriously, and especially on high profile videos is pretty quick to push back on censorial thuggish bullshit takedowns.

Ellis then has a fun narration of the takedown letter that Cain sent to YouTube, which the company passed on. It's... stunningly stupid. Here's a key clip that I want to post here just to make sure that everyone can see just how incredibly stupid it is:

The work infringed is not "fair use". My book is not public domain; it is a creative work, not a text book. The poster reads my books to degrade my work. This is not fair use of a copyrighted work, nor was this video a review of my work. It was a personal attack framed around two lawsuits filed against me personally in which the poster did not like the outcomes....

[....] The power significantly transformed my original work, both by altering the work and by mocking it for the poster's financial gain via YouTube and Patreon. Monetizing the video does not make this fair use.

Yeah. So. About all that. Fair use applies to copyright-covered works. If it were public domain, you wouldn't need fair use because... it's not covered by copyright. So that opening line is just... weird. Second, who cares if it's not a text book? Fair use is not limited to text books. Whether it's a personal attack (it wasn't) is completely meaningless to a fair use analysis as well.

But it's that second highlighted paragraph that is truly stunning. Because a key point for a court determining whether or not something is fair use is, literally, was it "transformative." And here you have Cain saying it's not fair use because it was transformative. She even used the word transformative. Also, the fact that the video is monetized is also (mostly) meaningless. Yes, "commercial" works sometimes are considered to have a higher standard when it comes to fair use, but not by much, and tons and tons of stuff is still done commercially and is fair use. The main way in which the commercial nature comes into play is if the work is somehow competing in the marketplace with the original. And in no world is Ellis' video competing with Cain's books.

From there, the takedown demand goes off on a rant about people being mean to her on the internet and then claims that the video is defamatory. And, like, that sucks, and people shouldn't be mean to Cain (or anyone) on the internet, and shouldn't threaten people, but that's got absolutely nothing at all to do with whether or not something can or should be taken down via a copyright claim. It's pure performative emotional bullshit victim-playing. Also, the video is not defamatory.

The video then goes into a bunch of other stuff which is fascinating and insane and bad, but we'll pick it up again later on in the story, after EFF steps in to defend Ellis and sends Cain's lawyer a letter basically saying "c'mon, you know this is nonsense." Rather than just walking away, the way a smart lawyer would, Cain's lawyer doubles down in a manner I've only rarely seen before. Again, I don't have the whole letter, but the parts that Ellis highlights are... whoo boy. A journey.

It argues that EFF is part of some giant conspiracy with Ellis and the Organization for Transformative Works (OTW). OTW is a great organization. We've written about them a few times, and once even teamed up with them on an amicus brief. But they're not EFF. They've worked with EFF on some things where their work has overlapped, but... so what? Watson/Cain seem to think there's a big conspiracy:

As your organization, the Electronic Frontier Foundation ("EFF"), is a close partner with the Organization for Transformative Works ("OTW"), and was clearly working with Lindsay Ellis on the Video, the EFF is aware that for over two years, my client, Addison Cain ("Ms. Cain") has been involved in two lawsuits in which the plaintiff (Quill Ink Books, Limited) was supported by the OTW...

Huh? What does that have to do with anything beyond attempting to tie red strings to cork boards. It gets worse.

Regardless of what really happened during the two lawsuits, it is clear that you and your client were intent on spreading false allegations and outright lies about my client and the litigation in the monetized Video, which the EFF received a portion of the proceeds to produce.

Ellis did mention EFF at the end of her first video because that's a nice thing to do when talking about bogus copyright abuse to try to silence critics, but it had nothing to do with the video. This is just random nonsense conspiracy theory claptrap.

Ms. Ellis could have easily condensed use of Ms. Cain's book into a few paragraphs for illustration instead of reading from the book for over two minutes.

Er. She did condense it down to just a few illustrative paragraphs. As is kinda obvious from the fact that in her nearly hour long video, there was just about two minutes of text from the book. It's bizarre to claim that Ellis should have done... what she actually did. And then complain about it.

It gets more and more unhinged, tying Zoey Ellis (the pen name of the plaintiff in the original case, who is no relation to Lindsay Ellis and has nothing to do with the creation of any of these videos) to all of this.

Zoey Ellis and her attorneys utilized numerous methods to obtain their objective to smear Ms. Cain's name, but one common denominator has been their utilization of the OTW, of which EFF is a close partner.....

[....]

Though you failed to directly address our allegations of defamation in your letter, it is our opinion that defamation exists, and because the EFF worked in collusion with Lindsey Ellis to create the monetized Video, the EFF is also culpable for the copyright infringement and the defamation.

Just to be clear, again, though it shouldn't need to be said: the EFF did not work with Lindsay Ellis on the video (nor did OTW, which is a totally separate organization from EFF). The video is neither defamatory nor infringing. And, even if it were (which it's not), there is no way that EFF would be "also culpable" of either the infringement or the defamation (which, again, does not exist). We're in pure crazy town.

And we're not leaving crazy town any time soon:

The tie between OTW and the EFF and the history of abuse my client faced the last two years, makes the use of Lindsay Ellis, a YouTube/Patreon personality with public sway, suspicious in the least, particularly where you assisted in the creation of a monetized Video where both the EFF and Linsday Ellis could profit off copyright infringement and defamation.

Again, none of that makes any sense, either from a "this is how facts work" standpoint or a "this is how law works" standpoint. If an actual lawyer wrote this, it is truly embarrassing. It goes on and on and on in this fashion and those are only the clips that Ellis shares. The full letter was apparently 40 pages. I'm flabbergasted.

As Ellis points out, Cain/Watson are effectively arguing that there's a vast fan fiction deep state working together to bring down... this one random author of wolf kink erotica. Because that makes sense.

Here's a simple lesson that Cain and Watson might want to learn: after people call you out on bullshit DMCA notices... stop digging. Don't file more. Don't claim defamation. Don't draw stupidly obviously bullshit conspiracy theories on the cork board with red yarn. Admit you fucked up, don't do it again, and move on with your life writing terrible wolf kink erotica fiction.

Filed Under: addison cain, commentary, copyright, deep state, defamation, dmca, fair use, fan fiction, fan fiction deep state, lindsay ellis, omegaverse, transformative, tynia watson, wolf kink erotica
Companies: eff, organization for transformative works, otw, patreon, youtube

Fine Brothers History Of Overaggressive Behavior Doomed Their Plan; But Hopefully Others Will Revive The Good Parts

from the there-really-were-some-good-parts dept

I kind of figured a lot of people would disagree with my post yesterday, in which I noted that the underlying idea behind what the Fine Brothers were trying to do in helping to support fans in making their own versions of the various "React" programs was actually a good idea. The point was that the idea behind it was actually pretty good. A big brand/entertainment property encouraging fans to make their own versions of their program, helping them with additional support, promoting those fan videos and helping them make money -- in exchange for a cut of the revenue -- remains a cool idea. Unfortunately, the idea came from a company that had a really bad history of overly aggressive behavior in taking down content, deleting negative comments and ridiculously and petulantly claiming that anything remotely similar to what they did was somehow unfair. The examples of them whining about Buzzfeed and Ellen having similar segments was particularly galling. On top of that, the trademarking of various terms, including the very generic "React" really pushed things in the wrong direction.

Many of you insisted that it was impossible to separate out these actions from the underlying idea of supporting fan videos -- and you're probably right. It's good to see that the Fine Brothers have now completely backed down from the plan, shutting down React World and announcing that they've decided to drop all of their trademark claims. On top of that they've agreed to drop all of their ContentID claims on YouTube. At this point, that was the only thing they really could do, and it was clearly the right move. Their history of overly aggressive behavior really made it impossible to do something else.

But... I'm hoping that people can still separate out the core idea that was there behind React World, and distance it from the fact that it was being put in place by people who had too much bad history to make it work. I still think that it would be great if other big brands recognized the value in freely supporting fans in making their own fan works, and even allowing them to monetize those works. Right now, fan homages to books, TV shows, movies and more live in a nebulous world in which, if they get too big, or even try to make any money, the companies behind the brands often shut them down completely. If you want to do something professional -- such as that big Star Trek Fan Film that is currently facing a lawsuit -- it's basically impossible. And that's a shame.

But imagine if some of these larger entities took the same approach as the key parts of the Fine Bros plan: allowing anyone to make stuff, even providing them with additional assets including tools, graphics, guidelines, etc. And then even saying that they'll help support and promote the best ones, in exchange for a cut of the profits? It could really lead to some cool new creativity from fans and more closely attach those fans to the originals. It's that underlying idea that I found intriguing from what the Fine Brothres had put together -- without recognizing how incredibly imperfect the Fine Brothers were as the individuals to deliver that message. So it's good that the Fine Brothers have recognized their past errors and backed down on basically all of their more egregious moves (not sure about their aggressive comment deletion stuff, though). But I hope that this doesn't doom any other larger entertainment property from entertaining ideas around supporting fans creating their own works, without upfront licensing fees.

Filed Under: creativity, fan fiction, fan videos, fine brothers, licensing, react, supporting fans, trademarks
Companies: fine brothers

Fifty Shades Of Fair Use

from the be-thankful-for-fair-use dept

Fifty Shades of Grey, which is being released this Friday just in time for Valentine's Day, is sure to be one of the top grossing films of the year. Depending on your point of view, fair use is to blame—or thank—for the existence of the Fifty Shades franchise.

The movie is based on the three erotic Fifty Shades novels, which have dominated (pun intended) book sales for the past three years. Over 100 million copies of the novels have been sold, the first novel of the series has been on the New York Times bestseller list for 140 weeks, and the novels have been translated into 51 languages. And to make sure that no dollar is left behind, Target just began distributing a line of Fifty Shades sex toys to coincide with the film's release. Similarly, Vermont Teddy Bear is offering a Fifty Shades of Grey Teddy Bear, featuring smoldering eyes, a suit and satin tie, a mask, and mini handcuffs.

The British author of the series, E.L. James (a pseudonym for television executive Erika Mitchell), originally wrote the trilogy as fan fiction of Stephanie Meyer's popular Twilight series, and posted it in installments on the fan fiction site FanFiction.net under the title Master of the Universe. Some of the readers complained that it was too racy for the site, which tries not to host adult content, so James moved it to a website she created, FiftyShades.com. At some point the popularity of the story must have convinced James of its potential commercial value, so she eliminated the potentially infringing references to Twilight characters and plotlines while retaining her original bondage/discipline, dominance/submission, and sadism/masochism themes. She divided this revised version into three novels that were published as e-books by an Australian virtual publisher.

Fan fiction is a quintessential fair use. It is highly transformative and does not harm the market for the original work. To the contrary, by allowing fans to engage and interact with the works they admire, fan fiction enhances fan loyalty and likely increases sales. For this reason, the vast majority of authors and media companies do not object to non-commercial fan fiction. (The little litigation involving fan fiction has arisen in circumstances when a commercial publisher distributed what started as fan fiction, e.g., the Harry Potter Lexicon.)

It is unclear whether fair dealing, the UK version of fair use, permits fan fiction to the same degree as fair use. The copyright laws of other European countries likewise do not contain exceptions sufficiently robust to provide certainty about the legality of fan fiction. For this reason, the world's largest fan fiction websites are based in the United States. Thus, FanFiction.net, the website on which E.L. James first posted Master of the Universe, was established in California in 1998. Fan fiction websites, like search engines and social media platforms, are examples of how fair use has enabled the global leadership of U.S. Internet companies.

Fair use and the fan fiction culture it enables nurtured the development of Fifty Shades. As she uploaded chapter after chapter of Master of the Universe, James almost certainly would have received constructive comments from other fans of "Twific" (Twilight fan fiction) recommending stylistic changes and plot twists, and urging her to continue writing. The fan fiction environment provided James with a platform for road-testing her work, and developing a following, without incurring infringement liability.

The creative cycle continues. Thousands of "fanfics" inspired by Fifty Shades are now available on FanFiction.net and other fan fiction websites. Perhaps some day one of them will evolve into a bestselling novel or a major motion picture.

Reposted from the Disruptive Competition Project

Filed Under: 50 shades of grey, copyright, fair use, fan fiction, twilight

Some Jerks (Probably The NFL) Got A Hilarious Romance Novel Parody Removed From Amazon Over IP

from the gronk-gronk-gronk dept

I'm a big fan of fan fiction for several reasons. I think it's awesome how a community can be so devoted to a particular something as to want to author their own creations around that something. I think it's cool when the original creators manage to use fan fiction as a mode to interact with their fans. Perhaps most of all, I love how fan fiction allows creative people to get silly on the subject of their work with parody and humor. For these reasons and more, I was particularly pleased when Amazon announced that they wanted to allow sales of this kind of work.

I'm less pleased to find that there are many ways in which those works can be taken down. See, Lacey Noonan is an author who goes out of her way to create parody novellas making fun of the romance genre. She recently released her short book about a housewife wanting to have sex with an NFL player.

Yes, the story quite prominently features Rob Gronkowski, New England Patriots tight end, and general all-around party boy. You know, this friggin' guy.

Yo soy fiesta. Yo soy fiesta. I am party. That's as Gronkowski as it gets. And it makes him a great subject for a laughable romance novella parody. Unfortunately, A Gronking To Remember has been removed from the Amazon store. Why? You see that small patch on Gronk's sleeve on the cover of the book that reads "MHK"? It's a tribute patch for the wife of the Patriot's owner and it appears to be the reason the book was taken down.

We're told the online retailer pulled the book because someone — perhaps the Patriots or the National Football League — objected to the book jacket, specifically the photo of Gronkowski that features the "MHK" patch on his uniform. (The team began wearing the patch in 2011 after the death Myra Kraft, wife of Patriots owner Robert Kraft.) In an e-mail, author Lacey Noonan told us she hadn't anticipated any problem with the Gronk picture.

"I didn't understand at the outset that Robert Kraft wouldn't want Myra Kraft and her philanthropical works associated with this," Noonan said in the e-mail. "Total newbie ignorance on my part. I believe — and hope — that's the only problem anyone has with the book since it is such obvious satire and parody."

If you look at the cover with an eye towards intellectual property concerns, you can clearly see how the team or the NFL might have concerns over the team's uniform appearing on the jacket, though it also seems clear that measures were taken to minimize how much the team logo and the uniform appears at all. But for this to be over the patch? And for that patch to result in the takedown of a hilarious piece of parody? It seems that someone needs to explain what rights exist for whom on a patch that consists of three letters, because we can't lose this literary treasure to that.

Filed Under: copyright, ebooks, fan fiction, lacey noonan, rob gronkowski, takedown, trademark
Companies: nfl

Supernatural Celebrates 200th Episode With An Homage To Fan Fiction

from the cwf dept

We were just talking about fan fiction, that most sweet expression of fandom, and why the subjects of that expression shouldn't bother freaking out over it. After all, all fan fiction really is is a love letter to the original creators. Besides, if it's good enough for our founding fathers, it should be good enough for us. More importantly, allowing a fandom to grow and flourish through that kind of expression can literally keep a show going when it otherwise wouldn't. Case in point: Supernatural.

If you're not familiar with the show, Supernatural is the ridiculous story of two brothers who kill supernatural things, befriend angels and demons, and generally exhibit the acting chops of a two-day-old potato salad. It's a fun little distraction, but it ain't Breaking Bad as far as the critics are concerned. Oh, and by the way, it's lasted ten seasons, twice as long as originally planned, in part because of a dedicated group of fans that have made the show the 2nd leading television subject on FanFiction.net, behind only Glee (shudder). And it seems the creators of the show know how much they owe to these fans, because they celebrated their 200th (!) episode by making it entirely an homage to fan fiction writers.

There are many things that Supernatural does well, one of which being the very idea of using meta episodes to take a trip down memory lane and even make fun of itself occasionally. And no episode was more focused on "The Road So Far" than the show's 200th. Taking a break from the drama of the Mark of Cain and Cas' fading grace, the hour was all about the fans, and more specifically, the fan fiction that has come after 10 years of saving people and hunting things.

Yes, the setting for the episode is on the set of an "all-girls production of Supernatural The Musical." Yes, the cast made up of mostly men is represented by female actors, a not-so-subtle nod to the show's demographic. The production is built around a caricature of fan fiction tropes, including everything from sexual tension between the brothers (slash-fic) and the kind of angsty dialogue that is common in fan fiction of this kind.

It's over the top and ridiculous...and it's exactly the kind of thing fans of the show will eat up. This is connecting with fans in a wonderful way: not only not hating on the fiction they write, but actually acknowledging it in the show. That's how a campy little show that was planned to last five seasons is on its tenth and counting.

Filed Under: connect with fans, fan fiction, supernatural

What's So Bad About Making Money Off Fan Fiction?

from the it-can-be-a-good-thing dept

Sometimes I read a great fan fiction and think to myself, "Gee, I wish there was a Paypal button here somewhere, because I feel the overwhelming urge to ram wads of money down this writer's throat." This is basically impossible, of course; fanfic is considered an illegal derivative work under copyright law, and even the creators that allow it have a no-tolerance attitude towards fans who try to collect money for their work. If fans were allowed to earn money, conventional wisdom claims, it would siphon money away from the original creator and they would lose business. But what if conventional wisdom was completely and totally wrong?

For-profit fan creativity is a huge opportunity, but creators are letting it go to waste because they're so anxious to protect their copyrights. It may seem counterintuitive, but letting other people make money from your intellectual property can add far more value than it costs—in some cases millions of dollars. How does this work?

It has been estimated that as of 2012, E. L. James was making $1.35 million a week on Fifty Shades of Grey. Now, it is widely known that Fifty Shades of Grey was originally a Twilight fanfic titled Master of the Universe. E. L. James changed the characters' names from Edward and Bella to Christian and Anna and republished her fanfic as a "new" book. Now she's a multimillionaire.

So let me ask you a question: how much money has Stephenie Meyer, author of the Twilight series, lost because she sent this brilliant piece of Twilight fanfiction out of her franchise? How many 50 Shades fans would have gone on to become Twilight fans if Edward and Bella had not been renamed? How many Twilight books would Meyer have sold in the resulting publicity frenzy if people had seen 50 Shades as an extension of her original stories? Meyer must have lost millions of dollars and sent away untold potential fans.

Now imagine what would have happened if she had shared her intellectual property with her fans, allowing them to earn money from their work instead of relegating them to non-profit status. E. L. James would not have been forced to "barcode strip" Master of the Universe in order to make a profit, and Meyer could have kept all that money and attention in the Twilight family.

Now, I admire Meyer's attitude towards fanfiction—she's one of the few authors who includes a list of Twilight fanfic sites on her homepage—but I think it's time for progressive authors to start questioning whether the taboo against for-profit fan activity actually serves a business purpose, or if it's just a reflexive attitude left over from an intolerant past.

Many authors believe that they must prevent fans from "competing" with them, or else readers will buy the fan's work instead of theirs, resulting in lost sales. This idea sounds good on paper, but it looks strange when you actually try to give an example. Can you imagine a Harry Potter fan saying, "Well, I was going to spend this $10 on Rowling's new book, but I spent that money on a fanfic instead. I guess now I won't buy the next Harry Potter book after all."

People like that just don't exist in real life. They're only a bogeyman haunting the insecure subconscious of the writing world. Even in the rare scenario where a fan like E. L. James writes a fanfic that becomes more popular than the original, it's highly unlikely that the original author will be harmed. What is more likely to happen is that all the fans who were attracted by the fanfic's success will now become interested in the original author's work and go out and buy a copy of it for themselves. That's hardly a negative consequence!

Let me give you a recent example of how this worked for me. I had a written a fanfic (nothing particularly special) that a few people clicked on and enjoyed. The story didn't attract much attention, and the internet had pretty much forgotten about it until a fan of my fanfiction (whee, recursion!) decided to pay a particularly talented fan artist to illustrate a scene from my story. So now someone is getting paid, and that someone is not me, the writer. Was this bad for my "business"? Nope. Immediately afterwards, the story got a big boost in traffic; in fact, all my stories did. Subsequently, a user contacted me to request permission to translate my stories into Russian.

Although I did not receive any compensation from the fan artist, nevertheless their work indirectly benefited me by expanding my fanbase and drawing attention to my work. If I had tightly controlled the for-profit use of my story, my work probably would have remained lost amidst a sea of hundreds of other fanfics. It's worth noting that the fan art is probably more popular than my original story—but who cares? The more publicity that picture gets, the more fans my story gets. It's a symbiotic relationship, not a competitive one.

But there are other reasons why authors break into a cold sweat when they imagine an anonymous fan's literary creations popping up alongside their own stories on Amazon. Writers worry that new readers won't be able to tell the fanfics apart from the original. The fear is that a new reader will do a search for "The Hunger Games" and discover a one star fanfic named "This Is My Frist Hunger Games FanFic About Katniss Please Read!!!!" The reader will then mistake the fanfic for the real Hunger Games, which has 4.6 stars and 21,746 reviews, and buy the fanfic instead. Mortified by what they find, they will then go and tell everyone how awful the Hunger Games is.

No, it doesn't make much sense. Nevertheless, there is a genuine concern that this could happen. Fortunately, most fans are scrupulous about giving attribution, and search engines are very good at pointing out the most popular items and sending unpopular work into oblivion. But for the extra-cautious, there's a simple solution to prevent reader confusion: just require fans to label their work as a fan creation by placing the word "[Fanfic]" "[Fan Art]" etc. in brackets after the title. This would make it impossible to mistake a fan's work for the original. Simple, no?

But there is another argument often made against for-profit fan creativity. Meyer was at one point threatened with a lawsuit by a fan who claimed that she had stolen the fan's idea in one of her books. The lawsuit didn't go anywhere, but you see the problem: if a creator and a fan creator both happen to come up with the same idea, the resemblance between the two creatives' work could give the fan an opening to sue the creator. For this reason, even authors who approve of fanfic typically refuse to read it for fear they might be held liable.

Such incidents do not happen frequently, but the danger they represent has led many creators to categorize fanfiction as a threat instead of an opportunity. Fortunately, an easy fix for this problem already exists. The solution is to use a ShareAlike license in which creator and fans formally agree to share ideas with each other. This explicitly ensures that creators and fans do not face legal repercussions even if resemblances occur. Such terms are already incorporated into tried-and-true open licenses like Creative Commons ShareAlike. Why worry about a problem that has been solved for years?

Of course, there are many non-monetary reasons why a creator might not want fan creators' work to become as popular as their own or to appear in a search engine next to theirs. I can't address these concerns; all I want to point out is that for creators interested in earning as much money as possible, fan creativity is financially beneficial.

In fact, let's go a step farther. The 50 Shades story is only the tip of the iceberg when it comes to making profits from fan work. Let's talk for a bit about the untapped potential of crowdsourced creativity. We all know why Wikipedia beat out Encyclopedia Britannica: Wikipedia has (approximately) umpteen zillion contributors who each contribute a single thought to the sum of human knowledge, whereas Encyclopedia Britannica has a relatively small team of paid staff who are experts in their fields. We can learn something very interesting from how Wikipedia completely slam-dunked the traditional encyclopedia biz.

When looking at franchises like Lord of the Rings, there is a clear division of labor. On one hand you have the "official" creators, namely Tolkien, his heirs, the movie studios, and the marketers and designers behind the various toy lines, games etc—a few thousand paid professionals, all told. And on the other hand you have hundreds of thousands of unpaid fans who each contribute a single piece of creativity to the pool: a work of fanfiction, a set of comic strips, a costume, a graphic novel, a short film, a kitbashed action figure. Taken as a whole, the fans have done a Wikipedia on the official creators, haven't they? They've created thousands of spin off novels, a gigantic toy line, and enough artwork to fill a thousand coffee table books. Not all of it is high quality, but even if we assume that 90% is crap and 10% is quality, that remaining 10% is massive enough to totally whomp the efforts of the franchise owners by any measurement.

All this unmonetized fan creativity is money lost for Tolkien's franchise. Even if they tripled their team of paid professional creators today, they could never hope to satisfy the whole demands of the market, because somewhere out there is a guy with $20 in his pocket who likes Lord of the Rings but is completely obsessed with dinosaurs. Unfortunately for him, LOTR doesn't have dinosaurs of any kind, so instead our potential customer will spend his money on Jurassic Park merchandise.

Under normal conditions, the owners of the Tolkien franchise would not be able to take advantage of such a tiny $20 niche market; they simply do not have the means to meet the unique needs of all the world's individuals. But there is another way by which this vast untapped market could be broken into. You see, somewhere out there is a fanfic writer who is working on a Lord of the Rings rewrite with the elves as raptors and Gandalf as a stegosaurus. (I have seen much, much stranger things than this become wildly popular.) This fan—one of hundreds of thousands of unpaid volunteers—has the ability to harvest that $20 in our prospective buyer's pocket. But none of that money would to go the owners of Tolkien's franchise. Or would it?

Imagine what would happen if the fanfic writer was allowed to accept the $20. The writer would have a strong incentive to write another dinosaur LOTR fanfic, wouldn't they? If the money kept flowing and the market kept responding, eventually other fan creators would join in with fan art, a short Flash cartoon, some comics, translations into various languages, a line of 3D printed toys, etc. Meanwhile, the dinosaur fan is now being slowly converted from a guy who was mildly interested in LOTR into a True Fan of LOTR who will now buy "official" merchandise from the franchise owners. But could this ever happen in real life?

It happened to me recently. As a kid, I used to be a big fan of Garfield; as an adult, I had pretty much forgotten about it. But that was before I discovered Mezzacotta's "Square of Root of Garfield Minus Garfield," a hilarious reinterpretation of Garfield which combines playful mathematics, Garfield scholarship, and ingenious twists to put a whole new spin on strips I had read dozens of times as a kid. After reading through all the Mezzacotta strips, I needed MOAR, so I headed over to Jim Davis' website to read through his archive of Garfield comic strips. Lately I've also been hunting through the local thrift store for his books. I'm still way more fond of Mezzacotta's interpretation than Jim Davis' original comics, but the odds of Davis getting money from me have increased dramatically with my renewed interest in the series.

So you see the progression: Fans tap market unsatisfied by original creator. New fans are converted and become curious about the original works. New fans go on to spend money on products offered by the original creator.

Once fan creators begin making money, it starts a virtuous cycle of profits and reinvestment that will allow the creation of ever more complex and expensive productions. Right now, fans are limited in their ability to create movies, games, merchandise lines and TV series because such things are out of their budget range. (It's not that they haven't tried; see, for example, this crowdfunding drive where a fan tried to raise $400,000 for a Final Fantasy web series, only to be shut down.) Yet if this stifled creativity and entrepreneurship was allowed to run its course, the results would be impressive.

How many writers dream of seeing their work translated into 24 languages and made into a TV series, graphic novel, toy line, video game and movie? Fans will do much of that for free out of love. But add in money as an incentive, and they'll take on increasingly expensive, complex and time-consuming projects like the aforementioned Final Fantasy series.

Yet most creators balk at the idea of giving fans the freedom to raise $400k for a project, and here again we run into another deep-seated fear: the idea that someone else will use the creator's idea to make a zillion dollars, and not give the creator any of it.

Actually, it's hard for me to imagine how a creator could NOT make money in such a scenario, provided that he was smart enough to use a ShareAlike license. Suppose, for example, that Tolkien was still alive today, and a group of fans raised $10,000,000 on Kickstarter to create a smash hit LOTR web series—all without paying him a dime in royalties. Apparently the expected response is for poor Tolkien to bemoan his predicament on a street corner as he rattles coins in a tin cup. But what about the massive publicity boost? What about the fact that new fans drawn in by the series will be reading Tolkien's books for the first time in their lives? What about the fact that Tolkien could write a new story set within the expanded universe of the series and get a guaranteed audience? What about the fact that under a ShareAlike license, Tolkien could record his own version of the series with author commentary, then sell it himself as a special edition? Even in this, the most-dreaded of all scenarios, there are tons of opportunities to make money.

But let's make it easier, shall we? All Tolkien needs to do is change his license terms to read, "You can make as much profit off your fan work as you want, but if you make more than $100,000 a year, then you have to pay me a 5% royalty." So now Tolkien can still make money off the series in the traditional way, and ambitious fan creators can still get funding and start working on that new MMO or animated series. Meanwhile, all the smaller fan creators are not faced with burdensome profit-reporting requirements that would require them to send over $0.25 whenever someone dropped a $5 tip in the bucket.

A license with just four simple rules can overcome almost all of the problems with allowing fans to monetize their creativity:

1. ShareAlike—every idea gets shared with the original creator and all the other fans who want to use that idea. This prevents lawsuits and keeps good ideas from being "claimed."

2. Require fan creators to give credit to the original creator. This drives new fans to the original source so that the creator can share in her fans' prosperity.

3. Fans should mark their work as being fan-produced by putting [Fanfic] or [Fan Art] after the title or thereabouts. This prevents reader confusion and protects the creator's reputation.

4. Fans who make more than $100k a year on their activities must pay a 5% cut of the profits to the original creator. This gives creators a share of the wealth if a fan strikes gold, but does not burden casual fan creators with reporting requirements.

It's time for creators to let go of their old fears and begin to reap the rewards of the crowd. Indie creators can benefit from the added attention their fans' creativity draws to their work, while bestselling creators can take advantage of hits like 50 Shades to expand the borders of their franchise into new markets. Give it a try: turn your fans into business partners, and see what they can do for you.

Filed Under: business models, copyright, fan fiction, money

James Madison, Father Of The Constitution, 4th US President... And Fan Fiction Writer

from the think-fan-fiction-is-just-about-teenage-girls? dept

Tell people that fan fiction is an important form of political speech that deserves protection, and they'll roll their eyes. The stereotypical fanfic writer is a teenage girl who writes misspelled stories about vampire love—is that kind of work really worth anything? Maybe there used to be folks like Shakespeare, Dante and Virgil who wrote stories about characters someone else invented, and yes, those stories changed the world, but let's face it: Vampire love. There's just no living that down.

Which makes it all the more mind-bending to learn that a man we respect, James Madison, Father of the Constitution and fourth President of the United States, wrote a story about a character he didn't create. Yes, the same man who wrote the Bill of Rights also wrote a fanfic. Vampires.

John Bull, the character Madison appropriated for his story, was created in 1712 by John Arbuthnot. Though forgotten today, Arbuthnot's satirical allegory about the War of the Spanish Succession, The Law is a Bottomless Pit, was very popular in its time. John Bull represented England, while other characters represented the rest of the nations involved in the war.

There was no fanfiction.net in Arbuthnot's time, but that didn't stop his readers from spinning off their own stories and comics which also used John Bull as a characterization of England. Over the course of a century, John Bull transcended his origins and became Britain's version of Uncle Sam. To the British he was a hero; to the American colonists, a villain.

Enter James Madison. The retired president was concerned over the growing rift between the North and the South. To give voice to his opinions on how the matter could be resolved peacefully, he wrote a short allegorical story, Jonathan Bull and Mary Bull, wherein a character named "Old Bull" represents England, and his descendants "Jonathan Bull" and "Mary Bull" represent the North and South respectively.

From a modern perspective the story is nothing much to read, but it does raise a rather intriguing question. Why fanfic? What made Madison decide to use existing characters to make his point rather than inventing his own characters like John Arbuthnot did for his own political allegory? And isn't using other people's characters without permission copyright infringement?

The easiest way to tackle these questions is to tell you an allegorical story. There once was a comic artist, "Jim M.," who wanted to comment upon the important issue of CIA torture. To make his point, he drew a three panel comic strip. In the first panel, Captain America is taking down a fanatical Nazi commander who tortured prisoners of war for the good of the Fatherland. "You will be tried for your crimes," he promises. In the second panel, Jim M. draws Captain America standing next to President Obama, who is casually observing that although the CIA did "torture some folks," the lapse can be excused because the torturers were patriots who loved their country. In the third panel we see Captain America's shadowed face as he walks away from a burning American flag.

Suppose Jim M. had created a new character, "Bob the freedom-loving American G.I." to use in place of the copyright and trademark-protected Captain America? It wouldn't have had half the impact, would it? Captain America's strong connection to American patiotrism and historic stand against the oppressive Nazi regime makes him an ideal character for Jim M.'s purposes. As for Bob the American G.I., the audience knows nothing about him. Even if Jim M. did try to provide Bob with a heroic backstory, readers would have to wade through 200 pages of unrelated material before they even got to the part about the CIA torture. Without the use of Captain America, Jim M. wouldn't be able to get his point across.

For Jim M., effective political speech requires the use of a popular icon, not an unknown character. Unfortunately, Jim M. has now opened himself up to a potential copyright lawsuit. If he chooses to defend his fair use rights, it will cost thousands of dollars in legal fees. If he loses, the damages could be even more grave.

James Madison didn't have to worry about the legality of his political speech because a) John Arbuthnot was Scottish and the U.S. didn't recognize international copyright laws at the time; b) John Bull had already entered the public domain; c) the creation of derivative works (such as fanfiction) had not yet been criminalized. It's that last point that concerns Jim M., because it means that he can no longer be sure that the law will protect his freedom of speech. It may, or it may not; either way, it will cost him thousands of dollars in court to find out. Compare that to the situation in Madison's day: If Madison had wanted to write an allegory where Captain America tries to make peace between the North and South, he could have done so without any fear of repercussions. Before derivative works became illegal, creators had the freedom to make use of the most appropriate character for their commentary without facing any consequences.

So what about Janice, who writes a five page long fanfic in which Edward and Bella visit the 9/11 site and wonder about the direction America is heading between passionate vampire kisses? Being born in 1901, Edward lived through WWII, and it turns out that he has some surprisingly insightful thoughts about the state of America today. The story concludes with Edward, who is telepathic, overhearing the hateful thoughts of his fellow visitors toward a man in a turban standing nearby. But Edward reads the man's thoughts, and learns that he is praying for the families of the victims.

Could Janice provide the same insightful opinions without using copyright-and trademark-protected Edward as her mouthpiece? Yes, but not as easily. It would be a tough challenge to develop Edward and Bella as rounded characters, then show Edward's unique powers and lifespan, all without shifting the emphasis away from the issues she wants to explore. Instead of writing a story about the impact of 9/11, Janice would end up writing a story about why her character has supernatural abilities.

Someone skeptical is saying, "Yeah, but do fanfic writers actually write stories like that?" Yes, absolutely! Fan creators make use of their favorite characters to propound their opinions on issues from racial equality to stopping SOPA. In the introductions to such stories, you will often hear the writer explain, "I thought such-and-such a character would be perfect for dealing with issue X because..." These writers have an innate understanding that the use of popular icons allows for powerful forms of expression that would be difficult to achieve by other means. Yet these same writers would have a very hard time proving that their creations are fair use before a judge.

Not that it matters, because such cases almost never go to court. Fair use is too fickle to be relied upon as a defense, and the expense of proving a point is too costly for the average person to bear. What we are left with is a situation where rights holders can basically censor political speech at will. Just imagine if John Arbuthnot had been able to order Madison to take down his story because he disagreed with Madison's political views. The President was deeply in debt at the end of his life, and like most of us, he could hardly afford an expensive loss in court.

Of course, some would argue that the ability to censor speech is a good thing. After all, suppose that an anti-Semitic fan wrote a story set in WWII where Edward joins the Hitler Youth? If it weren't for the laws against derivative works, the argument goes, Stephenie Meyer wouldn't have the right to take down the fan writer's objectionable ideas.

But it would be a mistake to assume that such censorship powers will always be used for good. Take for example the popular book, "The Education of Little Tree," written by Asa Earl Carter, a now-deceased member of the Klu Klux Klan. Suppose that a fanfic writer decided to have Carter's main character, Little Tree, befriend an African American boy as a way to express support for the idea that all men are brothers? The same power that gives Meyer the right to take down anti-Semitic speech also grants racists like Carter the ability to discriminate against the minorities they despise.

Most of us support freedom of speech, but for copyright holders, the right to censor views they disagree with has been all but enshrined as a legal right. What would happen, I wonder, if Jim M.'s Captain America cartoon went viral? Would his work be praised by Marvel, or would they send him a cease and desist letter? Would he crumple quietly, or fight it out in court for years?

"Yes," the critics say, "but we could avoid this whole problem if people just wouldn't write fanfics in the first place. Do your social commentary without using other people's IP!" You hear that, James Madison? You'll have to find another way to stop the Civil War. We have lawyers and they don't like how you're expressing your "creativity."

Madison cautiously approved of copyright, but I doubt that he suspected it would be used to chill free speech like his story 200 years later. The President clearly knew that derivative works can provide a compelling way to make a point, and as the author of the First Amendment, I'd like to think that he believed that fanfiction should be a protected form of expression. It's a shame that such a valuable means of public discourse has been almost criminalized today.

Filed Under: creativity, culture, fan fiction, james madison, john bull, originality

Japanese Anime And Manga Fans Worried About How TPP Will Kill Important Fan Fiction

from the don't-mess-with-dojinshi dept

Over a decade ago, we first wrote about how manga and anime in Japan was thriving in part due to the rise of fan fiction (even for-profit fan fiction) and the fact that the lawyers for official publications didn't try to shut it down. Instead, they realized that such fan fiction was often quite good for the original, official versions of the products. Over the years since then, we've had a bunch of similar stories. Rather than trying to hit fans with copyright infringement claims, publishers were willing to embrace those fans and it helped everyone in the industry.

However, many in the fan fiction -- dojinshi -- market in Japan are now worried that the Trans Pacific Partnership (TPP) agreement may now kill off that happy, mutually beneficial (even if technically infringing) setup. At issue is that the TPP may require more stringent enforcement of copyrights, even when the copyright holder has no problem with what's happening.

Usami and other creators of fan fiction, however, could face the possibility of legal prosecution as copyright violators in the future, depending on the outcome of TPP negotiations.

Some countries are apparently demanding that Japan clamp down on knock-off and pirated works in the intellectual property arena, even if the copyright holder does not object to it.

The more cynical among you might point to the fact that the dojinshi market's proof that copyright maximalism can be counterproductive, and allowing free flowing "infringement" among fans creating derivative works, so bothers some people that they feel the need to kill off such an important counter-example to the maximalist narrative. However, those involved in the space in Japan recognize that not enforcing copyright law has been better for everyone:

Many experts say the Japanese anime and manga subculture has thrived due in part to a tacit understanding in society that fan fiction should be accepted to a certain extent to allow room for amateurs to shine.

The recent Comic Market is one indication of the level of demand for dojinshi and other works of fan fiction. A total of 520,000 visitors attended--many of them teenagers or in their 20s--while about 35,000 groups sold dojinshi and other related goods.

Some are even worried that it might extend to cracking down on cosplay:

“The creation of derivative works has helped the expansion of the market (for anime and manga), a rich gray zone built based on a gentleman’s agreement between original artists and amateur creators,” [lawyer Kansaku Fukui] said.

If the copyright law was enforced without a formal complaint, not only dojinshi, but also parodied creations of movies and literature, could be subject to a crackdown, Fukui said.

He added that even cosplayers could be a target, especially if their costumes were elaborately made and if a video of the costume play was uploaded on the Internet.

“If people think about the possibility of coming under questioning, they might cower,” he said.

I would imagine that the various negotiators of the TPP probably aren't all that familiar with anime, manga or cosplay -- but pissing off fans of all three probably isn't particularly wise.

Filed Under: anime, copyright, cosplay, dojinshi, fan fiction, japan, manga, tpp