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Crossposted from my own LJ...

One of my friends (likebunnies) got a C&D from the MPAA saying that they own the rights to NC-17 and RATED NC-17, and that she has to cease from using same. I haven't seen the actual letter yet, but she's posted about it on her LJ.

While MPAA has a registration for NC-17 as a design mark, they (a) don't disclaim "NC-17" from the mark as a whole, and they (b) don't have a registration for it as a separate typed mark. As I understand it, she wasn't using the design formative at all. And the registration for the design mark covers only "entertainment services rendered through the medium of motion pictures", and she's not using it for vids, only for fics, as I understand it.

Yes, of course the MPAA can protect their rights in and to the mark for motion pictures, but am I right in thinking that (a) there is a descriptive element that has built up over time due to nonenforcement of this mark for things other than motion pictures, (b) the "famous mark" cases, including Ringling, aren't a help to the MPAA if they're claiming diluiton, (c) fanfiction is sufficiently far afield from motion pictures, especially when said fanfic is based on a book series, and (d) it would be pretty hard (and kind of amusing) to tarnish the mark "NC-17"?

I can see a few arguments on the MPAA's side, as well, but given that she's not really using it as advertising or in marketing, and that she's most likely using it in a descriptive sense, does anyone else think the MPAA is overreaching, just a little bit?

ETA: Here's the "other data" from the MPAA's registration for NC-17 & Design:
THE CERTIFICATION MARK, AS USED BY PERSONS AUTHORIZED BY CERTIFIER, CERTIFIES THAT, IN THE OPINION OF APPLICANT'S RATING OR APPEALS BOARDS, MOST AMERICAN PARENTS WILL CONSIDER THE MOTION PICTURE INAPPROPRIATE FOR VIEWING BY ANYONE UNDER THE AGE OF 18, BY REASON OF ITS DEPICTION OR TREATMENT OF VIOLENCE OR SEX OR ABERRATIONAL BEHAVIOR OR DRUG ABUSE, OR A COMBINATION OF THESE OR OTHER ELEMENTS.


Emphasis mine. I think that pretty much sinks any plausible argument they could make, althgough I would still love to see them allege that HP fanfic tarnishes the NC-17 mark.

Comments

( 53 comments — Leave a comment )
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rivkat
Feb. 14th, 2005 10:55 pm (UTC)
That's ... pretty hysterical, in a terrifying way. I think the problem with the MPAA's position is more basic: there's no use in commerce, since she's not selling goods or services in commerce unless she's selling vids, which I take it she's not. That said, all your other points seem valid too.
par_avion
Feb. 14th, 2005 11:10 pm (UTC)
That's bizarre. Are they going to send a C&D to every fanfic website? Or is there something particular about her site that drew their attention?

A quick google search shows that nerve.com uses the term NC-17 to describe some photographs.
heidi8
Feb. 15th, 2005 01:53 pm (UTC)
Seems aestheticism.com also got a letter.
hiddenhibiscus
Feb. 14th, 2005 11:54 pm (UTC)
I would love to see the office staff that's dealing with all the C&D's being sent out. I can't believe they'll even make an impact with the number of sites using the rating system, and I have to agree with rivkat, the first thing that came to mind was the lack of commercial involvement.
jocelyncs
Feb. 15th, 2005 12:01 am (UTC)
This is exceedingly odd. Is likebunnies posting stories on her LJ or does she have an archive?

I'm wondering what brought her to the MPAA's attention. Are they going after big archives like adultfanfiction.net too in some huge blanket action (seems like an awful lot of trouble for something so silly) or did likebunnies attract their attention specifically for some reason?

(I sure hope they're not going after HP fanfiction in particular!)
ex_iocaste2
Feb. 15th, 2005 12:29 am (UTC)
This doesn't surprise me. The reason we have the NC-17 mark at all is that originally, the MPAA didn't trademark the X rating. I think it was afraid of some kind of monopolization claim if it owned all recognized ratings.

Anyway, porn producers quickly coopted the X rating, making it impossible for a "serious" but adult film to distinguish itself. SO the MPAA created NC-17 to fill the void.
pepperjackcandy
Feb. 15th, 2005 04:32 am (UTC)
Anyway, porn producers quickly coopted the X rating, making it impossible for a "serious" but adult film to distinguish itself. SO the MPAA created NC-17 to fill the void.

I think that this is what set them off. Though why her site in particular, and why now, after it's been used by fandom for so many years.

I wonder if nc-17 fic writers could get around the "you obviously intend to give the impression that the MPAA has endorsed this fic" thing by explicitly stating that the author has made that determination.
(no subject) - mhari - Feb. 16th, 2005 05:04 am (UTC) - Expand
tigress35
Feb. 15th, 2005 12:52 am (UTC)
That's pretty sad. The original idea behind the ratings was so that the government would stay out of censorship. Considering it's supposed to just be a system of letting ppl know what content a movie has, I wouldn't see why they should care if anyone else uses the system as well, especially for non-profit. It's not like anyone else can come in and start movie ratings, like they have competition or threat. Ridiculous.
dmitchell1985
Feb. 16th, 2005 09:07 am (UTC)
*gasp* I love your icon! I had to show some Luthor love quickly. =D

DLM
(Deleted comment)
heidi8
Feb. 15th, 2005 01:11 am (UTC)
What in the letters looks false to you?
(Deleted comment)
kyanoswolf
Feb. 15th, 2005 01:57 am (UTC)
According to www.uspto.gov, the only goods and services the MPAA has the mark registered for is motion pictures.

Are books and short stories in the same class of goods and services as motion pictures?
heidi8
Feb. 16th, 2005 05:52 pm (UTC)
They';re not, but that's not 100% definitive - for example, a registration for a motion picture could protect against someone using the same term for video games, or sheets, or t-shirts, as they're all interrelated. And even a registration for a motion picture could bar use of the same term for a book series. But this isn't a regular mark - it's a certification mark for a specific type of good, so it should be limited even further, to just those types of goods.
mandysbitch
Feb. 15th, 2005 12:30 pm (UTC)
THE CERTIFICATION MARK, AS USED BY PERSONS AUTHORIZED BY CERTIFIER, CERTIFIES THAT, IN THE OPINION OF APPLICANT'S RATING OR APPEALS BOARDS, MOST AMERICAN PARENTS WILL CONSIDER THE MOTION PICTURE INAPPROPRIATE FOR VIEWING BY ANYONE UNDER THE AGE OF 18

Hmmm. I see what they're getting at. If I'm reading what they are saying correctly, then the non-profit argument would probably be inconsequential given the reliance angle they seem to be going for... And it's kind of funny because I had, not so long ago, given some thought to the arbitrary nature of rating s in fanfiction and that surely they had to be a little unreliable given that they are up to the discretion of the writer and not an independent rating body.

I suppose they could argue that anyone seeing the mark on internet fanfiction *could* be misled into thinking the work had been rated (tangentially - say by and independent rating body similar to the MPAA or associated with) by the MPAA or the Appeals Board. I'm guessing this person would be completely unfamiliar with internet fanfiction (and not more than a little naive).

I would still love to see them allege that HP fanfic tarnishes the NC-17 mark.

It *does* make me wonder why they didn't go for a rating more likely to mislead with negative consequences - such as a G rating.

But doesn't the C & D imply by extension that NO recogniseable rating system be used on fanfiction? Surely there's a public benefit in having a system of ratings that is recogniseable across mediums? *Especially* in a non-regulated arena.

Perhaps the easiest thing would be to disclaim - "This story is rated by the author and not by and independent body." Like fanfic needs more disclaiming...

cschick
Feb. 15th, 2005 04:28 pm (UTC)
I wonder if using that disclaimer for an archive as a whole would be sufficient. That's basically what we've done--more to avoid reader complaint than to "protect" ourselves against the MPAA.
(no subject) - mandysbitch - Feb. 17th, 2005 03:15 am (UTC) - Expand
nullabona
Feb. 15th, 2005 01:49 pm (UTC)
Isn’t the cat already out of the bag here? I’ve been reading fanfic for about 10 years and I believe the MPAA styled ratings have been in use most of that time. Wouldn’t the MPAA had to have taken action before now? Hasn’t this rating system already been Kleenex’ed-Nulla
heidi8
Feb. 15th, 2005 01:52 pm (UTC)
Exactly. That's what I'm saying at (a) in my post - I've only been in the fanfic side of fandoms for five years, but the nc17 designation has only existed for 15 in the first place, so nonenforcement by them for a third, or two thirds, of that time frame makes this a "refrigerator" situation, at least for things that aren't films. I think the MPAA's argument would be stronger against a vid site, though, as those are forms of motion pictures.
(no subject) - cschick - Feb. 15th, 2005 04:32 pm (UTC) - Expand
(no subject) - goddess_blue - Feb. 26th, 2005 07:50 am (UTC) - Expand
(no subject) - heidi8 - Feb. 26th, 2005 12:46 pm (UTC) - Expand
(no subject) - mistressrenet - Feb. 15th, 2005 02:28 pm (UTC) - Expand
(no subject) - loveanddarkness - Mar. 30th, 2005 11:24 pm (UTC) - Expand
cschick
Feb. 15th, 2005 06:23 pm (UTC)
Hey, Heidi (and Rivka too) . . .

If the MPAA was planning to give a publisher permission to use their marks as ratings for written works, would this event make slightly more sense?

In the past several days, NPR programs (Marketplace and Weekend Edition) have done several reports on Harlequin and their plans to attract younger readers. The Weekend Edition report focused on the "edgier" lines being created by Harlequin, and the Marketplace report on Harlequin's entry into the movie industry. Although I personally believe that the movie rating system isn't a great system to use for written works, I could see Harlequin--on entering into a partnership with the MPAA--wanting to use the rating system in order to define some of their new lines.
dancingrain
Feb. 15th, 2005 09:09 pm (UTC)
This is the best potential explanation I've seen yet for what otherwise doesn't seem to make tons of sense, timing-wise (years too late).

Also, it might be worth our remembering that the MPAA not long ago joined the RIAA in deciding to sue customers for file-sharing, so they may be trying to begin a generalized online crackdown - ie, they're starting to get scared that they've let things get out of control on the internet and want to take something that feels to them like decisive action.
(no subject) - ide_cyan - Feb. 16th, 2005 05:36 am (UTC) - Expand
executrix
Feb. 16th, 2005 04:47 am (UTC)
Using NC-17 is very US-centric on what is, indeed, the World Wide Web--I've seen a number of comments from people in other countries asking what NC-17 means.

The MPAA would be stuffed trying to show consumer confusion, but I'm not sure it wouldn't be better to use something like "one blue square: no sexual content" to "four blue squares: explicit sexual content, you can't read this unless you click to indicate you are of legal age in your jurisdiction."

Also: Universal City Studios v Nintendo (2d Cir 1984): no risk of consumers confusing arcade game "Donkey Kong" with film "King Kong"
Hormel Foods v. Jim Henson Products Inc., 36 USPQ2d 1812 (SDNY, but I can't read my own notes for the year): no risk that consumers will confuse "Spa'am" (Character in Muppet Treasure Island) with processed ham product (admittedly, there was a parody defense asserted that isn't present in this situation)
Charles Atlas Ltd v. DC Comics Inc., 112 F.Supp.2d 330 SDNY 2000): comic book readers would not confuse "Flex Metallo" comic book character with Charles Atlas body-building courses (parody defense here too).
kalikamaxwell
Feb. 16th, 2005 04:51 am (UTC)
I would just like to say they're going to have a mighty lot of fun. Fandom isn't just the USA. On top of that, I've seen these ratings used in at least one other language. It's really spread out by now.
dmitchell1985
Feb. 16th, 2005 09:05 am (UTC)
They are definitely going overboard. They should spend their time focusing on the archives, or better still, those horrible movies which are made every year.

I know that they do not make the actual movies, but hell, they know someone who does! *tsk*

This reminds me so much of the "police." Being given too much powers allows you the precious time to focus on the unimportant. Instead of nabbing something or someone worth while, they spend their time being a flat out bully. *huggles likebunnies*

Who knows, they might come after me next. I use the rating system, and I showed some support. I must be a threat as well!

Yours,

Danielle
nataku245
Feb. 21st, 2005 02:49 am (UTC)
Fan Works Rating System
It would be difficult to do I think as the fan fiction community is so far spread but if enough people could come together on major fan fiction forums for discussion and they could spread the word throughout the fandoms they are a part of, the authors could sit down and create a Fan Fiction Rating System. Like say have - just for example - R18+ (Rated 18+), R13+ (Rated 13+), RA (Rated All), and so on. The 'Entertainment Software Rating Board' (ESRB) uses a seperate rating system for rating console and computer games than is used by the 'MPAA' for movies as does the 'The TV Parental Guidelines Monitoring Board' for TV programs - though theirs is based off the MPAA's rating system.

So why can't the fanfiction community create a standardized rating system for fanfiction and fanart? If we could...problem solved, no more claims of copyright infringment and it would help eliminate confusion about rating meanings for those not familiar with the MPAA rating system if it were standardized. If enough archives - especially the large ones - used the fanfiction rating system then other archives new and old would begin to use it as well. Authors and archive owners could form our own 'ratings board' and the board could set the ratings system and apply the new system to their stories and archives and spread the word to the mailing lists and messageboards asking people to also spread the word to lists and boards that have not had notices posted to them about the new rating system. Sorry for the never ending sentence heh.

Hmm I'm getting more detailed as I go, I'm on a tangent now folks! The board could create an icon that archive owners can place on their main archive pages in clear view of visitors that links back to a site that gives the details and purpose of the rating system, why it was created and who the boardmembers are that created the system. It would also show readers and authors which archives use the system and which ones do not. Unfortunately I think that this is unlikely to happen, but the amount of cooperation and support that would be needed for a project like this to work would show people just what the fanfiction community can do.

I'm a huge fanfiction fan, I read FF in different anime, book, movie and TV fandoms and have published fanfiction off and on since 2000 when I have the time, so far in only one fandom. I'm a bit worried about how this is going to affect the larger archives not just ones that are specific fandoms like Fiction Alley, Heliopolis/Helio2/Area 52 (Stargate archives) and Gundam Wing Addiction are, but ones like Adult Fanfiction that are multi-fandom archives that use the MPAA rating system. FF.Net no longer uses the NC-17 rating but how long will it be before the MPAA goes after archives using the G, PG, PG-13 and R ratings as well since all of them are registered trademarks of the MPAA?

Rating Systems

http://www.esrb.org/esrbratings_guide.asp#symbols
http://www.tvguidelines.org/ratings.asp
http://www.mpaa.org/movieratings/
heidi8
Feb. 21st, 2005 03:45 pm (UTC)
Re: Fan Works Rating System
I would love to have this, but as someone else said, it's very difficult to retroactively change the ratings on all the pages on a site. FFN might be able to do it because of the way their database works, but on FA, everything is "hard coded" to the page at this juncture, and it isn't feasible to change every page. And on another level, I just don't like the idea of cowing to the MPAA on something they don't have the right to demand anyway.
(Deleted comment)
Re: Fan Works Rating System - nataku245 - Feb. 23rd, 2005 10:02 pm (UTC) - Expand
Re: Fan Works Rating System - simplelyric - Feb. 25th, 2005 12:40 am (UTC) - Expand
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