Conway details how DC Comics first developed a system of "creator equity participation" to compensate creators when their characters are adapted into other media, only to have the more recently-formed DC Entertainment devise a loophole to avoid payments by describing some characters based on pre-existing analogues (e.g. Caitlin Snow, a revised version of Killer Frost, created by Conway and Al Milgrom) as "derivative" of those analogues while also not crediting (and thus, not paying) the creators of the original characters from which they were "derived."
DC Entertainment has used this move to stop paying Conway for adapting characters he created or co-created (such as Power Girl and Jason Todd) and to never start doing so for characters such as Felicity Smoak.
You can read more about DC's definitional shenanigans at the link.
Photo agency Mavrix, who were called a "copyright troll" during a lawsuit against Buzzfeed, just lost a lawsuit against LiveJournal over photos posted on OhNoTheyDidnt, one of LiveJournal's remaining successful communities. ONTD, as it's commonly known, has nine moderators, including one who is also a LiveJournal employee.
The issue involves photos that were posted not by ONTD themselves, but by community members, and at least one blog post notes that no explanations were given for why Mavrix didn't go through the DMCA takedown process, which is what LJ provides for anyone who believes that someone else has infringed on their work on any journal or community on LJ.
Because Mavrix didn't go through the DMCA process and instead simply sued LiveJournal for hosting infringement, their claim was thrown out of court; the court said:
LiveJournal ... provides an online platform and makes the platform available to members of the public to create their own individual or communal blogs. Before this lawsuit was filed, LiveJournal did not know of the allegedly infringing posts and was not aware of “red flags” of specific infringement; it did not have the right or ability to control such infringing activity; and upon learning of the posts it promptly removed them from the site. Consequently, LiveJournal is entitled to the protection of the Digital Millennium Copyright Act (“DMCA”) safe harbor…
It's a solid cast for all online communities that allow people to post works on their sites, including twitter, snapchat and tumblr staff, because there haven't been many DMCA cases that have gone this far through the courts - they usually either settle for some sum, or the content is removed and the plaintiff is thus satisfied. The DMCA process has been around for almost twenty years, and as explained in this case, it obligates the copyright owner to notify a site hosting a claimed infringement about said infrigement; if the site owner/moderator doesn't take the content down in a reasonable amount of time (even if there are grounds for the content to be found noninfringing) the copyright owner can sue (although they should lose if the use falls under Fair Use, as Fair Use is a lawful use of a copyright)).
But in this case, Mavrix didn't notify LJ or ONTD; they just sued. And the court said that they're not allowed to do that, and therefore, any claim against LJ or ONTD is barred. How does this impact community moderators and site owners on forum-sites, or sites like tumblr (and LJ) where users can submit posts that are approved by a moderator?
It says that even where a moderator approves the post, any infringement is by the individual who submitted the post.
That all posts had to be approved by a moderator before becoming visible on the site does not disqualify LiveJournal under the “broad” statutory language of the DMCA safe harbor for “infringement . . . by reason of the storage at the direction of the user.”
The court also said that users, not LJ, select the content to be posted on the site, and make the posts themselves. Even though LJ's site/platform can be used by users to share infringing content, "LiveJournal does not solicit any specific infringing material from its users or edit the content of its users’ posts" and therefore, LJ does not have high levels of control over the posts made on ONTD or other LJ comms.
LiveJournal has done other sites, platforms, communities, fandomers, news sites and forums a great service by seeing this lawsuit through. Mavrix has a pattern of using a threat that sites owe it hundreds of thousands in damages if one of their users - or even they - post a single photograph owned by one of Mavrix's paparazzi, and as Gigaom wrote two years ago:
The legal dilemma is a result of the very big stick that the law gives to copyright owners — the right to seek damages of up to $150,000 for each single infringement. This penalty has its place as a nuclear option of sorts to stop or deter serial infringers. Unfortunately, some image owners are brandishing the nuclear option against everyone — from small blogs to careless interns (who may have been responsible for the BuzzFeed shots) — without taking any account of the actual harm done by the copyright infringement. Instead of a simple request to take the image down (which most people would comply with), we get a legal train wreck.
We have clients who have dealt with these sorts of claims from agencies that rep paparazzi, and it's terrifying for small sites. While photographers do deserve reasonable license fees for their work, the nuclear option gives them an opportunity to threaten to basically bankrupt a site, even one as large as LiveJournal.
We'll keep an eye on what, if anything, happens with this case, and any similar actions by Mavrix or other agencies.
nameless-traveler recently posted concerns that "The Obama administration announced that it will be bringing back a piece of SOPA legislation that would make streaming copyrighted material a felony" and linked to a petition against SOPA at https://petitions.whitehouse.gov/petitio
But here's the thing. The Obama administration did not announce that they are bringing back a piece of SOPA legislation (apart from the fact that only Congress can introduce legislation).
( Here's what's going on:Collapse )
- Current Mood:lawyerly
Our analysis of the claims Smash made in trying to defend their actions is here.
An update about the settlement is here.
More thoughts on disclaimers are here.
The best bit from all of this, we think, has been Universal saying this in a court document: "Defendants do not and cannot provide any legal authority for the proposition that" fanfiction is "in the public domain".
Remember that the next time you have a fair use battle against a major multinational.
All you have to do is hit the share button on a post or essay or fanfic you really like and it appears in its entirety in your journal to share with your friend's feed. The original poster/creator does get a notification and at the top there's a link stating...originally posted at "shadowkat67" or whoever the original poster is.
Is this permissible under International Copyright Law? Does anyone know? I've admittedly been out of the field for ten years, and it kept changing while I was in it, so I'm not certain what the rules are now.
In *my* opinion, this should be fine. After all the author posted the fic to the public. I'm not saying by doing so that they gave up the rights. I'm saying by doing so, they acknowledge the risk of doing so. In addition since posting it to the public, doesn't that mean they wanted it to be seen? That they didn't care if it was to be seen? With that in mind, why wouldn't it be ok to distribute said fic? It has the old author credited. Like I said, just my opinion.
Can I or can't I? I've looked up LJ TOS and FF.NET TOS and they pretty much, to me, say, if you post on our site, we are not responsible for whatever happens.
Could they then claim it was original? Could they sell it as their own work? Would it change the situation if the original fanfic, with the names unchanged, was still available online?
I ask because I've read a lot of Twilight AUs with all werewolf or vampire characters as humans, and the characters are often so changed it seems they might as well be original.
EDIT: Also, what about real-person fiction (RPF) AUs, or fics that don't mention whatever real thing the people are a part of (their band, or the show/movie they acted in, etc)? If the names were changed, what would that mean? Could it be called original, and would having the fic with names unchanged online affect that?
- Current Mood: curious
Even though most of the Canon is in the public domain (except the Casebook), the characters of Holmes, Watson, et. al. are protected by copyright. At least, I think they are, but it's very hard to tell because the Web site that purports to be the Conan Doyle Literary Estate refers to Andrea Plunket, whose copyright over the Holmes characters is not recognized by US law. Jon Lellenberg is the American literary agent for the Arthur Conan Doyle estate, according to this New York Times article about the Holmes copyright.
I'm confused because many people are publishing Holmes pastiche without getting licensing or permission. Last weekend I spoke to an editor at Quirk Books who had several Holmes pastiches for sale, and none were officially licensed. He told me it is not necessary because the stories are in the public domain. But if the characters are still protected by copyright, how can publishers print so many pastiches without hesitation? And if publishers can do it and profit from it, can I, a solitary author who would probably self-publish my pastice, do the same without breaking the law?
I've wanted to write a Holmes pastiche for years and only the copyright issue has held me back. Any advice you have would be appreciated!