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Gerry Conway, a comic book writer whose extensive career includes creating many characters for DC Comics--some of whom currently appear, in altered form, on television series based on DC superheroes--posted "Who Created Caitlin Snow on #TheFlash? According to @DCComics, Nobody" this week on his Tumblr.

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.
Over on tumblr, I summarized the ruling in this week's SDNY ruling that the play 3C is a transformative work and Fair use, and thus does not infringe on the tv series Three's Company.
You can read the full ruling here.

LiveJournal Victorious!

Kudos to LiveJournal and ohnotheydidnt!

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. 

SOPA is not back.

Crossposted from FYeahCopyright on tumblr:

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/petition/stop-sopa-2013/LMzMVrQF

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 )
We've been blogging about it on a new tumblr at fyeahcopyright, and found out this morning that the case has settled!

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.

Fic from deleted journals, fair game?

 Hello, I'm new and I have an issue/question. Recently an author deleted their fic from LJ and FF.net by deleting their accounts. The author cannot be reached. I've saved said fic as a PDF and don't know if I can distribute it.

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.
Due to the excessive spamming of this entry, I am disabling comments.

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.

Mr. Lellenberg said that Sherlock Holmes remains under copyright protection in the United States through 2023, and that any new properties involving the detective "definitely should" be licensed by the Conan Doyle estate...

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!

Links to material

I am an admin at the Supernatural Wiki, which is a wiki site for the TV show Supernatural that covers both the show and the fandom. For each fan convention we have an entry where fans link to their reports, pictures and videos taken during the Conventions. Many conventions have prohibitions on videotaping, but it happens anyway and is usually posted on You Tube. No Supernatural Convention has ever requested fans remove material posted after the Con. Until now.

There was a convention in Australia over the weekend which was very strict on only "recording devices" and disallowed even cameras after the first 5 minutes of each guest's panel. To date only a few videos have been posted.

I have been contacted by the Convention organsiers and asked to remove links to the fan videos and an audio recording, and would like advice on where I stand on this. Obviously if the fans remove the material the question is moot.

Not necessarily a factor, but at this Convention they did play an illegally downloaded episode of Supernatural (it even had the CW watermark on it!) and they played a number of fanvids which they hadn't obtained permission to use. Hence my added level of annoyance.

Any advice appreciated.

Sam Cushion and Midnight Sun

Hi, I'm Marauder; I'm a second-year law student and I've been in Harry Potter fandom since 2002. Could somebody do me a huge favor and evaluate this, specifically this?

Sam Cushion had a twirock band called Midnight Sun; his songs were all electronic and instrumental. He was advertising the albums as "the unofficial scores" to the various books in Twilight. Apparently Summit Entertainment not only had an issue with people believing that Midnight Sun was officially associated with Twilight, and with Sam making money from his albums, they claimed that the word "twirock" itself violated copyright, and demanded that Sam remove all of his music from the Internet.

I can see the issue with the confusion over who was behind Midnight Sun, I can see the issue related to Sam's making money, but it really bothers me that Summit is claiming the right to shut down anyone who comes up with an instrumental song and calls it "Death of Rosalie Hale" or "Arrival In Volterra" (two of Sam's song titles - others, like "Papercut" and "I Should Infuriate You More Often", were less obviously Twilight-related). I don't know Sam Cushion at all and he's not asking me to do this; he seems depressingly resigned to the fate of his music.

Of course, the far-reaching implications are that Summit Entertainment can shut down any little fourteen-year-old who sings a song about Edward Cullen on YouTube, and any company with the copyright to a fictional work can shut down anyone who creates a song about that work. They didn't just tell Sam to stop selling his albums and be more clear about his lack of any official tie to the series.

Claiming that the word "twirock" is a copyright violation struck me as really absurd. Do they have a right to do this?

Jan. 20th, 2010

I'm working on a website (still beta, not publically announced yet) that has a slightly complicated rights situation. I'd like to license half the site under Creative Commons and keep the other half under normal reserved copyright. Not only is it a site about fanworks, with a lot of fair use material, but it's also a wiki, which means there'll be multiple authors, including drive-by editors who might not be findable to contact about permissions later. As a frequent drive-by wiki editor myself, the idea of doing a wiki under anything but CC makes me twitch -- but I also understand that not all of our potential users are going to straddle the fandom/writing and copyleft communities as comfortably as I do, and that the ambivalent legal status of fanworks means muddying the waters further may be unwise.

Would anyone be willing to glance over my draft copyright policy? I hope this doesn't edge too close to the "legal advice" line. I'm really just hoping that someone can spot any blatant problems I've overlooked, either legally or in terms of non-geeky fen going "WTF is copyleft!?" I'm expecting that I'll be writing most of the CC material myself, but of course, since it's a wiki I can't guarantee its future. So I'm trying to write a policy that anticipates and minimizes potential problems.

The draft is here. Thanks!
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