While complications and tragedies are taking place around the world in these days of Corona, courts are still releasing rulings in cases that they’ve been hearing and evaluating over the past year.
On March 24, the 9th Circuit issued a ruling in a fair use case involving Olivia Newton-John’s Magic(from the Xanadusoundtrack) where the court (which covers California) held that the use of Magicin a medley by a high school show choir was fair use because of the limited and transformative nature of the use of a portion of the song.
This ruling has the potential to have a positive impact on fair use evaluations by educators, schools and even media who are creating content for students of all ages to use remotely, in part because of this language in the ruling:
the defense of fair use, if applicable, should cover “teaching” whether in a private or public setting
The ruling literally summarizes the plot of Xanadu* and then notes that:
“Rainmaker” is an entirely different theatrical work—a show piece for the high school choir that reworks pieces from multiple songs to tell a story with new expressive content and meaning.
To wit, a transformative work. As explained in Nimmer on Copyright, “if, regardless of medium, defendant’s work performs a different function from plaintiff’s, then notwithstanding its use of substantially similar material, the defense of fair use may prevail.”
The Ninth Circuit also awarded attorneys’ fees to the defendants in this matter, stating:
Awarding Defendants their attorneys’ fees insures that they are properly compensated for defending against overreaching claims of copyright infringement and pressing a defense that benefits those educating our youth. An award of attorneys’ fees here assures that “an overzealous monopolist [cannot] use his copyright to stamp out the very creativity that the [Copyright] Act seeks to ignite,” SOFA Entm’t, 709 F.3d at 1278, allowing for greater breathing room for classroom educators and those involved in similar educational extracurricular activities.
This aspect of the ruling is very important to educators and those who manage educational extracurricular activities (possible even those not tied to a specific school or school district), because it recognizes that Fair Use is a vital part of educational activities – in the classroom, on weekends and after hours – and that there is no monopoly of control that copyright-holders manifest.
* Which is clearly a very important and impactful film, according to Heidi
A thrilling “where some courts have gone before but it’s awesome every time” ruling out of Los Angeles today, as a trial court found that the mashup of Dr Seuss and Star Trek entitled “Oh, the Places You’ll Boldly Go” is a transformative work, protected by the Fair Use doctrine, and not a copyright infringement. Salient sections of the ruling include: “Although Defendants certainly borrowed from Go!—at times liberally—the elements borrowed were always adapted or transformed. The Court therefore concludes … that Defendants’ work, while commercial, is highly transformative. Plaintiff’s argument that Boldly is a derivative work misses the mark, as a derivative work is not foreclosed from being transformative (or constituting a fair use).” Page 31 of the ruling discusses the purpose of the Copyright Act, which is seemingly sometimes forgotten by copyright owners: “[T]he primary objective of copyright is not to reward the labor of authors, but ‘to promote the Progress of Science and useful Arts.’ To this end, copyright assures authors the right to their original expression, but encourages others to build freely upon the ideas and information conveyed by a work.” The ruling strongly supports fanworks, follow-on creativity and parodies (even though this work wasn’t one). Yes, it’s only a trial court ruling, and it can be appealed, but it sets out the law sensibly and structurally and hopefully will be upheld if it goes up on appeal.
There’s more discussion of it on Twitter and you can read the entire ruling here.
If you’re a longtime reader (first-time caller) of FYeahCopyright, you’ll know that we’re not the alarmist sort. We don’t traffic in rumors, and we look at the cases and the laws (or proposals) that we discuss.
That being said, if you’re a citizen of an EU country, it’s time to get cranky with your representatives, and hope that we can change things around re certain copyright laws that are expected to pass in January when they’re up for a final vote.
Here’s a summary of what will change on the internet if the final vote affirms today’s vote.
In the US, companies have grown in and by hosting user-created content – fanfic, memes, photos, videos, audio clips, VR and so much more – but the EU regulation includes NO exception/carve out/safe harbor for user generated content, or works in the public domain (France, for example, has Moral Rights rules that apply re authors of public domain works). But hey, certain corporations are happy because it creates new rights for sports events, and some new rights for publishers.
There is a carve-out for “non-commercial” entities including “encyclopaedias” – but not databases or other informational resources, nor creative content. The battles will be fought over the definitions – and there could be a separate battle in each country.
The tech doesn’t exist to support whatever it is the EU is trying to do – the same way the tech isn’t there to support certain aspects of the GDPR (like deletion requests without authenticating identity (see Spotify’s issues of this week)). Will all sites have to buy/lease/subscribe to whatever algorithms and filters Google has created? (Will Google create a “free to nonprofits & schools & maybe certain governments” provision like the one they’ve done for Google ads? Should sites share data with Google to be in compliance with the laws of every EU country?)
Even now, algorithmic filters can’t figure out what qualifies as parody (and with each EU country having a different definition…. oy!). Will the filters be used to curtail free speech, or surveil users, or engage in corporate espionage (or any other type)?
Here’s what Cory Doctrow wrote about the impact of this law on all the content we create and share. One bit of it is this:
We’ll fight in Europe’s courts, too: there’s no way that asking multinational corporations to send all of our communications to American data-centres to be analysed by algorithms and arbitrarily censored passes European constitutional muster.We’ll fight in the 28 European parliaments when they sit to make national legislation.
We’ll fight in the upcoming elections.
Hell, even if we’d won tonight’s fight, we’d have to keep fighting.The fight to keep the internet free and open isn’t a fight you win, it’s a fight you commit yourself to.
Here’s what my friends at Public Knowledge have to say:
Web services large and small might decide to implement the directive globally, which would diminish American users’ capacity to share memes, political satire, or news articles online.
Will this Directive apply to all websites?
No, “small” companies and nonprofits with under 50 employees and under 10 million euros on their balance sheets won’t have to be in full compliance on the filters, etc. However, any site that uses a cloud-based service like AWS (Amazon) or Google’s Cloud for storing files could find that usage massively limited because Amazon, Google, etc., are definitely not small companies, which would increase the cost for sites to stay online, get server space, etc.
It’s almost impossible to really calculate the impact on sites like GoodReads, Pinterest, (Lyrics) Genius, etc.
And if you’re wondering what impact Fair Use will have, well, unfortunately, Fair Use – the way we know it in the US, the way it’s used by Fanfiction.net and @wattpadand@ao3org – doesn’t exist in Europe; while the 2001 EU Copyright Directive includes a list of copyright infringement exceptions, a 2015 White Paper recommended that EU countries expand from ‘fair dealing’ to Fair Use and allow flexibility in the interpretation of exceptions and limitations, that flexibility doesn’t currently exist. If it did, some of the problems created by today’s vote would be mitigated.
SO SHOULD WE PANIC NOW?
No.If you’re a citizen (or resident) of an EU country, reach out to your reps. Explain to them how this law will impact you personally; tell your story. Get involved with a national organization that is fighting against this law, and one that’s ready to push back against it in the courts – especially where it can curtail free speech, which is a fundamental right held by all EU residents.
Pushing against this Directive doesn’t mean you support piracy or counterfeiting of creative works like films, books or photographs. It means, though, that you want creativity, science, communications and education to thrive online, just as they have for almost thirty years.
There’s a terrific discussion on Twitter of how fanartists have been “discovered” online, or included fanart in portfolios or other showcases, which have led to freelance and salaried jobs
And websites and apps like the Hamilton app ask for fanart submissions which feature work by artists who are looking for exposure (and not necessarily looking to be paid for something they’ve created out of love for a show, character, film, band, etc. The language in the Hamilton ToU is generally great - they’re asking for a license, not an assignment, and they say that they will not sell any stickers made from the fanart that a fan submits pursuant to this Agreement.
The one line in it - and other similar agreements - that makes some people uncomfortable is the statement that the submitter acknowledges that the submission “is a derivative work based on intellectual property owned exclusively by the Company.”
But right now, the Second Circuit (which includes New York) and many other circuits as well hold that while transformative works are a subset of derivative works, if they are Fair Use, then the limitations that would otherwise prevent a person from creating and sharing a derivative work without consent would not necessarily apply.
Now, we can all think of Hamiltonfanart that isn’t a derivative work at all – using words written/said by any of the characters, in a revolutionary font or red-white-blue colors would be inspired by Hamilton but wouldn’t actually be a derivative work, so I do wish the show’s legal team would tweak that language a bit (ie “…is either a derivative work based on intellectual property owned exclusively by the Company or a work based entirely on content or information that is in the public domain…” but the agreement on the app isn’t a rights grab.
It’s a good thing to keep in mind when you share fanart with The Powers That Be - unless they’re paying for it, don’t submit if the Terms of Use demand an assignment of your rights, but do note that if they’re asking for a license, you still own the original aspects of what you’ve created. I’ve been keeping my eye on agreements where fans license or even assign rights to their fanworks since well before we wrote about a Random House project at San Diego Comic Con in 2012, and this is a lot better than what we were seeing five years ago.
And take a peek at the gorgeous art in the #fanartgotmepaid tag. That’s a discussion for another day….
Alan Say’s children’s book Silent Dayswas found to be non-infringing of the art of James Castile by a federal court in Idaho. The Idaho Statesmandescribed the book as a “fictional biography about Idahoan James Castle, a self-taught artist whose works can be found in museums, art galleries and private collections all over the world.” (Links to the parties’ court filings are here.)
Say used inspiration from a number of Castle’s works within the picture book, but without the consent of Castle’s estate. In the ruling, Judge Winmill wrote:
Say created a version of Castle as a self-taught artist who was isolated by his disabilities and driven by his artistic passion, ultimately finding salvation in his art from a harsh world… That version of Castle emerges from Say’s illustrations themselves and their placement at various points in the chronological text. In other words, the illustrations combine with the text to create Say’s version of Castle.
In this sense, the illustrations transform Castle’s art into a version of Castle’s life story, a version created by author and illustrator Say.
The judge held that three of the four “nonexclusive factors” that go into a fair use ruling weighed in favor of Say and Scholastic, the judge said, and while one tilted in the estate’s favor, it was “of little significance.” That factor of little significance was the one regarding whether the work was commercial - the fact that it was was not enough to make the Say book an infringement, when all the uses of the Castle art were transformative.
someone please get sued for monetizing destiel smut so lawyers have to read from it in front of an entire room
someone please get sued for monetizing destiel smut so WB has to claim in court that your Deancas fuckfest “fulfills the demand for the original” and is therefore “unfair competition” because it could reasonably be passed off as the original (thus undermining the potential profitability of the original)
PLEASE
hi everyone laughing at this (appropriately, because it is very funny), there’s actually a real example of how making characters gay helped a copyright case. [Usual disclaimer when I talk about fan copyright stuff, this is just me and not on behalf of the OTW legal committee. :) ]
This amazing book The Wind Done Gone is the subject of a totally fascinating fair use case that the author won in part because Ashley Wilkes is gay.
When Margaret Mitchell’s estate sued Alice Randall, a U.S. court of appeals had to decide whether this retelling of Gone With the Wind from the point of view of Scarlett O’Hara’s slave half-sister could be fair use. Mitchell’s estate argued market harm, because they officially licensed GWTW sequels, and because this wasn’t licensed they made no money from it.
However, it turns out that the estate required all “official” GWTW authors to sign a pledge that their work would include no references to interracial relationships or homosexuality. So since the book had both, including Ashley Wilkes being gay, the court noted that they never would have licensed this book in the first place and therefore they didn’t lose out on any market share.
Anyway, there was much more to it than that, but the court said that the facts favored fair use. And I’ve always considered this a great testament to the power of fanfiction with gay characters the original author wouldn’t approve of. :)
So it’s not surprising Tumblr is trying out monetization, because I suspect that ALL user-generated content platforms are headed that way. But I am absolutely gobsmacked that they’re explicitly calling out fanfiction as an example of something that Tumblr users should monetize.
I mean, we all know that norms around commercialization of fanworks are changing, e.g. patreon. And we also know that commerciality isn’t an automatic “nope not fair use now” magic button, but there is a good reason that OTW and AO3 specifically only focus on and allow on the platform noncommercial fanworks.
Like, sure, join the monetizing creators bandwagon, Tumblr, but I absolutely would have expected you to pretend you don’t know people might be monetizing fanworks.
[Caption: “Not reserved only for professionals, or those with 10K followers or higher, Tumblr’s Post+ will push the boundaries of what’s considered money-making content on the internet: Shitposters, memelords, artists, fan fiction writers, all of the above and everyone in between will be able to create content while building their community of supporters, and getting paid with Post+,” a Tumblr spokesperson told TechCrunch.]
(Please note that I’m speaking personally here and not on behalf of OTW Legal, though I’m guessing there will be an official statement out in the future since we’ve gotten inquiries.)
So no, Tumblr won’t “protect” you against copyright infringement claims anymore than e.g. YouTube does. If there is content on Tumblr, or any other platform, that a copyright owner thinks is infringement, the most likely course of action is that they use the DMCA takedown process, as noted in Tumblr’s statement. This doesn’t change because of the content being monetized. The only thing that changes is a potential fair use analysis.
Likely order of operations… let’s imagine fictional copyright owner “Anne”: (1) Anne sees fanfiction on Tumblr; (2) Anne sends notice to Tumblr via DMCA processes; (3) Tumblr removed content and notifies the Tumblr user who posted it, informing them that they can file a counter-notice if they think their work is not infringing; (4) Tumblr user decides whether they want to fight it or not, which probably includes them deciding whether they think their fanfiction is fair use, and that analysis might change based on whether it’s monetized; and (5) Either the content stays down, or the user sends a counter-notice, and then Anne (or Anne’s lawyers) get to decide whether they agree, and if they don’t, they can choose to sue the user.
However, at that decision point to send a counter-notice or not, the Tumblr user can just decide to let the content stay down. Or maybe they repost it non-monetized, to be safe. So no, Tumblr will not defend you, because it’s up to a user to know whether their content is infringing. Tumblr also isn’t telling you that fanfiction (monetized or not) is fair use (or not) - they’re saying that any content on Tumblr might be fair use, which is true. As Tumblr points out, whether you make money from something is not an on-or-off switch for fair use. However, there is a reason that OTW specifically supports noncommercial fanworks. It is certainly a stronger fair use argument if work is noncommercial. But fair use is still always case-by-case.
But my point here is that the order of operations is almost certainly not “Anne sees your fanfic” to “Anne sues you and you end up in court.” And basically, none of this has changed because of monetization. This exactly same process is what could have happened to any content on Tumblr a week ago.
So it’s not surprising Tumblr is trying out monetization, because I suspect that ALL user-generated content platforms are headed that way. But I am absolutely gobsmacked that they’re explicitly calling out fanfiction as an example of something that Tumblr users should monetize.
I mean, we all know that norms around commercialization of fanworks are changing, e.g. patreon. And we also know that commerciality isn’t an automatic “nope not fair use now” magic button, but there is a good reason that OTW and AO3 specifically only focus on and allow on the platform noncommercial fanworks.
Like, sure, join the monetizing creators bandwagon, Tumblr, but I absolutely would have expected you to pretend you don’t know people might be monetizing fanworks.
[Caption: “Not reserved only for professionals, or those with 10K followers or higher, Tumblr’s Post+ will push the boundaries of what’s considered money-making content on the internet: Shitposters, memelords, artists, fan fiction writers, all of the above and everyone in between will be able to create content while building their community of supporters, and getting paid with Post+,” a Tumblr spokesperson told TechCrunch.]
So Lindsay Ellis’ latest video about DMCA takedowns to her original video about the omegavers copyright lawsuit, including accusations of a FANFICTION DEEPSTATE involving OTW, included in it a totally bonkers fair use analysis that inspired me to make an entire video about not just that specific case, but also explaining fair use generally (in a hopefully accessible way) with a focus on fanworks.
Disclaimer: I am on the legal committee for OTW, but they had nothing to do with this video. They also have nothing to do with the omegaverse lawsuit, and if there is a fanfiction deepstate no one has let me in on it. :(
Sometimes it’s best to start a story near the end. This end, however, is one of many. Death is unbiased, life is unbiased. Every action has a definitive reaction and every moment has an effect on another.
Daniel Lee Fenton had a fairly standard childhood growing up in a home-based prosthetic clinic….. Well, as standard as possible when his parents’ hobbies centered on the paranormal. Galvanized metal, wires, buckets of bolts and strange glowing lights synthesized from artificial ectoplasm littered everything. Ectoplasm was the energy source of the future, more potent than a battery or electricity and able to adapt remarkably with the human nervous system. A bioenergy that could synchronize with lost musculature and human anatomy flawless. Phantom limbs could be given new life with bioelectronics and precise engineering so that veterans could walk, the deaf could hear and those paralyzed could achieve mobility again. The science was still considered new, the resources and grants for research limited. And so? Only the rich could afford the prosthetics. Athletes, lawyers that had lost limbs to cancer, notable figures in the government… All given with a signed release form prior to the attachments or products being fashioned and attached with Madeline Fenton’s renowned expertise for adjustment and nerve assessment. But there was a snag with the research. Artificial ectoplasm tended to lose energy after a few years and parts needed to be replaced regularly to prevent corrosion or loss of movement. This, of course, led to the obvious need to conserve funds and resources which lead to experimentation in the home.
His parents, the people who were wary of the paranormal and claimed ghosts as a danger, began cobbling together ‘the portal’ when Daniel was nine. A portal to an uncharted layer of reality between death and life. The venture was a bid to gather naturally occurring ectoplasm for prosthetics. Naturally, occurrent ectoplasm was far more stable and lasted longer than the artificial variety which had to be charged prior to use.
The portal didn’t help the rumors circulating in town. Ghostbuster knockoffs, spook cooks, the Fenton Menaces… Their reputations preceded them everywhere they went and starting in high school the taunts and bullying had begun in earnest for their youngest child.
Daniel still had his friends though, a socially awkward geek named Tucker and an eccentric goth named Sam.
The portal was always a passing topic of discussion. Wiring seemingly damaged, odd cuts in the panels, damaged service hatches and parts. Things just tended to be out of sorts around or with the portal in one way or the other.
And regrettably, it had failed to cut on again during a test run. The master cord to the grid had been plugged in two days prior and all they had gotten was a few zaps. Power just couldn’t divert properly through the artificial ectoplasm circulating in the filtration housing chamber. Dr. Fenton was at her wit’s end and both parents had decided that it may just be time to cut their losses and simply rely on improving the artificial ectoplasm. Plans for sending in a drone on New Year’s day to activate the internal components were now on hiatus until further notice. The readouts on the front of the portal read the same no matter what they tried so power input would just fry the circuitry.
What the Fenton patriarchs did not know was that the portal was going to activate under a set of rather extraordinary circumstances while they were away visiting a patient. The date was December 29th, 2015, four days after Daniel’s fourteenth birthday. His sister Jazmine had gone to the store for cocoa and marshmallows so he and his two friends could celebrate him turning fourteen together before New Years’.
Said teen was currently leading his friends down to the basement, smiling brightly. “Okay, so I’ve been working on something. Don’t laugh okay?”
Sam smiled and Tucker smirked. Adjusting his glasses, Tucker’s greyish green eyes locked with Daniel’s blue smugly, “The only way I would laugh at you is if you were going to try gifting that ‘gag’ toilet paper to us as a party favor.”
Daniel cringed at the mention of the toilet paper his father had ordered with his face pressed into the ply. A gag gift that regrettably had come in bulk to the clinic and most certainly was a regret purchase compared to the normal ‘Fenton Works Prosthetics’ logo Jack Fenton usually ordered for the building.
“Yeah, no. I’m not giving you guys toilet paper with my dad’s face on it.” Then Daniel turned toward a medical locker near the stairs and opened it. Rustling through the sheets and some spare pajama sets used for patients staying overnight in the observation’s center. “Besides I said I’ve been working on something.”
Hands grabbed a bundle of white fabric and pulled it out so it could be unveiled in front of the two with a flourish. Tucker whistled and looked over the modified hazmat suit with a smile, “You cut off the face part?”
Daniel nodded with a beaming smile and pointed to the black collar on the suit, “I don’t need it once I make the helmet.”
Sam’s gloved hand reached out and thumbed a patch on the left shoulder of the suit. There were three. A space pilot patch, a radioactive symbol patch, and a Colorado State patch. The top was triangular, the middle circular and the bottom rectangular. On each shoulder, there was a black tab of fabric meant to look like a uniform’s epaulettes. Padding had obviously been added in at the knees and the elbows, clearly defined by careful little black stitches in the white fabric.
Tucker whistled, “That’s probably one of the coolest space suit costumes I’ve seen.”
Daniel grinned dopely, “ I know right? I got the idea watching Star Trek and found a spare hazmat suit to toy around with in the vault.”
Sam nodded and her hand went to her ‘vintage’ polaroid smugly before she snapped a photo of the intrepid explorer and his suit. The photo shot out with an electric whirring and she shook it out with a grin. “So have you tried it on yet or?”
Daniel rubbed the back of his neck nervously and his freckled face scrunched with embarrassment. “Eh…no actually. Mom and Dad have been working on the portal the last week and I couldn’t get down here to try it out.”
Sam smiled brightly and dragged his arm toward the center space of the lab, past the shelves and near the round portal bordered by hazard stripes and safety protocol signs. “Try it on.”
Daniel grinned and nodded before glancing to the portal, “You know what maybe we should get some photos inside the portal?”
Tucker raised an eyebrow, “The supposedly dangerous portal bordered by stickers and signs warning about electrocution?”
Daniel smiled sadly and rubbed the back of his neck, “Actually my folks are probably going to convert the space into another vault…The energy readings keep flatlining so opening an actual tear through dimensions or even getting the ‘operations’ light on the top is going to be an impossibility. Dad blames ghosts.”
Tucker snorted, “Really?”
Sam looked to the portal and sighed, “So all of that work-”
“-is toast. Botched. Scraped.” Daniel answered dejectedly. “They tried plugging it in and the entire grid flatlined. It didn’t even read on the machinery.”
Then his eyes went to the portal, “But I think it’s something to do with the breaker panel. They thought it fried but I think the breaker flipped.”
Tucker crouched down and looked into the space, lifting a refurbished PDA and his Samsung to take a photo. The PDA lit up the dark corner while the phone’s camera clicked. “But the panel is in the back of the portal right?”
Daniel nodded, “Yep.” There was a glance into the briefly illuminated space. The glowing emergency strips embedded in the sides of the structure and on the floor briefly caught the light and reflected a neon green in his blue eyes.
Sam gave a soft smile as he tugged on the boot portion of his suit, “Over here space cadet.”
A photo was snapped and she took the photo out as she looked down to Tucker to get his attention, “I think he looks pretty cool in his dopey white suit.”
Tucker snorted and looked up, “It would be wayyyyy cooler with the ladies if it was black. Full bad boy ghostbuster vibes.” Then Tucker laughed into his hand, “ Or a plumber.”
Daniel rolled blue eyes as he inspected the inside of the machine. “ Ha.Ha.Ha.”
‘Wouldn’t it be cool if I got it working?’
Sam hummed behind him. “ You know Friar Tuck may be right… Black is a pretty good color.”
‘I wonder what could be on that other side. The next frontier?’
There was a reach of a gloved hand to zip the suit. “It’s an astronaut suit, not a ghostbusters suit guys.”
Sam chuckled and smiled, “Whatever you say Venkman.”
Daniel snorted at Sam’s words and went to think of a retort when a black boot caught a cord on the floor. Body pivoted forward in free fall and blue eyes were wide as a hand pressed forward. Then the world ripped to pieces and shattered in an instant as his hand brushed the internal ‘on’ switch. The very one his parents had planned on pressing with a drone for New Years prior to the supposed short. Electricity like lightning crackled up limbs and the machinery on the outside of the portal whirred to life, flashing an otherworldly green. Daniel was oblivious to it as his body and very soul were ripped to and fro like a ship in a storm, darting between light and the portal’s harsh metal walls. Energy arched and a warped and terrified scream resonated as skin flickered transparent, vine-like lines of energy morphing and flickering under the skin.
Everything burned as the air was ripped away and back arched before he slammed back against the far wall. Something was forming at the end of the tunnel. Water dripped down cheeks, glowing and fizzling in the overly bright space. Seconds felt like an eternity and tears dissipated to nothingness as green sprung out and ripped the boy apart, restitching and recreating him in an instant. The burning felt bone-deep as he continued crying out, vomiting and clawing the air in terror. Something snapped in his chest as he fell forward so a gloved hand, briefly white, shifted back to black.
Boots crawled against the floor, sluggish and incoherent as stray sparks from the gateway latched onto his limbs, each one flickering and warping like mist before solidifying. A hand clawed near the outside edge of the portal. Sam and Tucker screamed and then his friends were tugging him out.
“DANNY! Danny oh’ god! Wake up!” Sam was crying, face streaked and mascara running down her cheeks.
Tucker thumbed a hand to Daniel’s neck, “He’s alive. I think he’s just in shock. Sammy help me, we have to call 911.”
Daniel’s eyes flickered green and a hand numbly reached for Tucker only to pass through him. Tucker went wide-eyed and screamed in horror. “Oh god, he just-”
Sam dropped her phone and the screen cracked against the metal flooring. A trembling hand went to her mouth and there was a panicked look to Tucker. They had killed their best friend. Daniel’s hand resolidified against his stomach with a weak flop and eyes, a bright inhuman and glowing green fluttered before closing. Tucker took a calming breath, checked Daniel’s pulse again and quickly unzipped the hazmat suit. Faint glowing green burn lines could be seen snaking under and around arms “Sam? Grab the boots and pull.”
Purple nails scraped into the black rubber and yanked while Tucker lifted Daniel’s legs up and began detangling them from the suit.
Soon the duo were sliding their friend over their shoulders and carrying him up the basement stairs. From there? There was a turn out of the kitchen into the lounge and then to his room on the second floor across from Jazmine’s.
A car could be heard pulling up outside, not the telltale loud thumping of wheels from the Fenton’s preferred method of transportation but rather the sounds of Jazmine’s small 2010 Toyota Corollol rolling into the garage at the back of the house. Both teens froze on the stairs, wide-eyed and terrified before rushing up the last few steps and into Daniel’s room. Band posters and comic books blew with the force of the door.
Tucker lifted Daniel up, blinking at how light he was before rushing the teen to his bed in the center of the room to their left. The window curtains blew slightly and Sam rushed over to them to slam the opening shut as Tucker pulled a blanket over Daniel. There was a direct look to Sam, “We need to distract her. If he’s a ghost.Sam- He has a pulse but…You saw that right?”
“I know. We need to distract Jaz until Danny wakes up then we need to call the Fenton’s…” Sam replied, shoving the singed and burnt space suit on to the floor with her camera before grabbing Tucker’s arm and rushing them out of the room and downstairs.
Jaz was kicking off her shoes just outside of the garage and looked towards them as they turned into the hall next to the living room, “Sorry I was held up. The craziest this really, a power outage clocked off the stoplights up the street so I had to reroute.” There was a pull off a scarf and a toss of a pink jacket onto a hook before Jaz raised an eyebrow, “Where’s Danny?”
Sam looked upstairs and pointed, “Sleeping. He conked out pretty hard and told us to wake him up in a bit.”
Jaz raised an eyebrow but nodded, grabbing the two bags on the bench below the coat rack and going toward the direction of the kitchen, “I’ll start the coco up. Can you two find a movie that isn’t Christmas themed? His birthday was pretty lackluster again thanks to the portal shenanigans.”
Tucker nodded and went to the living room, clearing away various boxes and gizmos from the couch but still stealing glances upstairs. Sam was the same, looking up every few seconds as if silently praying Daniel would wake up on his own.
Regrettably, they got their wish. Daniel woke up, scared and alone in his bedroom with a seemingly over itchy wool blanket rubbing against the light burns on his arms. His Casper High t-shirt was totaled with a hole burned straight through the red circular school logo on his breast. A hand clutched to his heart shakily, feeling it beating through icy skin. Then the real nightmare began. He fell. Fell right through every layer of his home to sprawl semiconscious on the floor of the basement lab
Eyes teared and fingers clawed into the metal grating as stomach did somersaults. Fingertips and legs felt like they had fallen asleep or possible had been microwaved after being frozen. Blue converse squeaked clumsy to run to the lab sink. Eyes…Oh god, his eyes and-
Then he screamed as he backed up. Clothes were shifting and warping, lungs ripping away and feet catching in the floor like quicksand before a beeping emanated from the workbench. Then the gun went off. The gun his parents had made to protect from ‘ghosts’. A dud on any other day. Jazmine ran down the stairs at the scream as did Tucker and Sam but all they found was droplets of what looked like artificial ectoplasm splattered with red. Daniel shivered against himself, holding his chest wide-eyed and terrified at a simple realization. He was invisible to them. Then he ran, up the stairs, through the kitchen and the lounge and right up the stairs leading to the second floor before he hit his room and slammed the door shut.
Skidding to a halt near his closet, he ducked in and hugged his chest to his knees, rocking back and forth until static reached out from his center and made him more solid, and heavy. Like water added to a tank. Fingers clenched into hair, breathing stuttering as lungs fully regrew for fresh air between panicked and muffled sobs.
Danny Lee Fenton was now the one thing his parents had adamantly claimed as a monster from the time he could walk. Fingers clutched the bleeding wound on his chest numbly, tearing in slightly to the point it was almost blackout inducing. He needed to get rid of the clothes…To hide this before his sister and friends saw.
Ripping off his t-shirt and tossing it under the bed, one thing was for certain. He could never tell his mom and dad. Not what he had done…Not the fact he had gone into the portal out of a foolish sense of adventure or pride….And certainly not because a part of him had taken pride in the fact that he, just maybe, could get their attention for the first time in months.
And so Daniel hid it and two years passed. Two years of stumbling through adolescence and puberty and making himself into a sort of vigilante with their equipment. The portal worked and ghosts seemed to come out of it more often than not to stake claim or muck up the day to day lives of Amity Park, Colorado.
Armed with a soup canister he faced many villainous ghosts and over time had lamented the exploits into an almost comical rendition to make up for how depressed and anxious he had become. Life just seemed to go on.
One such villainous entity was Vladimir Masters, a halfa, who seemed more Disney villain than reality…
He loathed that man whose very existence pivoted on harebrained schemes. Attempted murders via ghostly henchmen, plots against his father at a highschool reunion via a possession, join the dark sides speeches, giving a teenager ecto weapons to kill her classmates, stranding Daniel and his mother in the Rockies just outside of Wyoming, then the skeleton key search resulting in a ghost hunt with Daniel’s head on the line, thievery against a ghost that pulled Amity Park, Colorado into the ‘zone….Then Vlad became the mayor of said town through a ‘rigged election’ in May of 2018.
Then things got dark. Very dark. There had been clones of Daniel made by the other halfa. Daniel considered it one of Vladimir’s acts of desperation for a family, warped and twisted as each ‘clone’ faded save for a girl. The young ‘clone’ and Daniel defeated Vladimir and left him in the wreckage of his hunting lodge. Then there was the capture of said clone for genetic material only a few months later. And then there was the giant asteroid that got swatted on a collision course with Earth because of Vlad…
Little did Daniel know, he was part of a much larger story…
guys check ao3 for interview with the vampire fics bc apparently there’s 65 pgs worth of it now, being dated back to 1995.
I’m just hoping her estate doesn’t follow in her wishes. Maybe I’m just negative but I wouldn’t trust it until we find out what her heirs have planned.
There’s nothing they can do, if the fics are posted to AO3 and aren’t being posted for any kind of monetary gain (which they shouldn’t be because AO3 doesn’t allow that for exactly this reason).
Because here’s the first thing: fanfiction falls under fair use, for reasons, which is why so much of it exists and you don’t hear many stories about people being sued for it or creators coming after fans anymore. You’ve technically been able to post fanfic of Anne Rice stuff, but here’s the second thing: although plenty of people did post anyway, people often didn’t out of either respect for her wishes (because she was expressly against fanfic authors writing about her characters, a stance I’m given to understand she reversed in her later years) or the fandom genetic-memory fear that she would personally try to come for them.
But here’s the third thing: the estate can’t come for you directly unless you list direct contact info on AO3. Because what are they going to do? Leave a comment with a takedown notice, with no way to know if you have notifications turned on? No! AO3 has no native way to directly contact any of the authors archiving their work there. If they want to get to you, they have to go through AO3, and as long as you’re following AO3’s rules (which again are literally in place to protect you against exactly this kind of thing and specifically protect you from this actual person/estate, as her history is part of the reason AO3 exists) AO3 is going to tell them they have no ability to make you take it down. You actually won’t hear from the estate for posting on AO3, because AO3 would be the ones dealing with it for you.
So like. Take a moment and appreciate the folks who are posting freshly because they feel safer with her gone, sure. But also take a moment to appreciate that AO3 exists and protects us, and has been protecting us from their first day.
& then maybe go drop them a couple bucks to help keep the lights on so they can keep doing so.
they absolutely could sue if they pursue through whoever owns copyright ownership now and AO3 decides not to react to initial requests or dmca (i don’t know why they would invite that upon themselves)
whether you make money from it or not doesn’t change a thing and i don’t know AO3 but unless they specifically have some kind of litigation fund, precisely for this, i don’t know why they would be uniquely nonresponsive to dmca
the only reason why fanfiction doesn’t get sued into nonexistance is because ip owners choose not to pursue most of the time. probably because there’s no profit potential in doing so, like there is in other forms of content creation
“I don’t know AO3” is the most accurate thing you just said. They do, in fact have a legal team specifically for dealing with exactly this.
Additionally, when I said fanfiction falls under “fair use” I wasn’t just saying it was fair game. The USA (which is where this matters because that’s where Anne was and where I’m pretty sure AO3 is) has a doctrine within copyright law that allows limited use of copyrighted material without having to acquire permission from the copyright holder. Fair Use is used as a defense to copyright infringement claims on some things that might otherwise be considered infringement- like fanfiction.
And it’s even ABLE to be used as a defense wrt fanfiction because one of the things used to defend fanfiction is that it is transformative/derivative.
Works of fanfiction are more likely to constitute fair use if they are “transformative” with respect to the original work, if they are non-commercial, if they appropriate relatively little of the original work, and/or if they do not tend to detract from the potential market for or value of the original work.
Which is why being not-for-profit isn’t, as you seem to think, not important. It’s actually quite literally one of the backbones of why fanfiction is typically considered fair use and able to be produced and shared publicly without actually breaking copyright laws.
As for the AO3 stuff, there’s an entire article on Wikipedia with more and more accurate explanations about what happened and why, but here’s an important excerpt of it, with bold added by me for the deeply relevant bits:
[In 2007], a group of fans who engage in creating fan works and are part of the larger fan community founded the Organization for Transformative Works (OTW).[37] OTW has since advocated the legitimacy of fan fiction due its transformative nature. OTW’s position is that fan fiction and other fan labor products constitute copyright fair use under 17 U.S.C. § 107 because they add “new meaning and messages to the original” work,[38] and thus fall under the exemption to U.S. copyright law the Supreme Court defined in Campbell[39] and which was later revisited and followed in Suntrust.[40] OTW’s vision includes seeing “all fannish works recognized as legal and transformative and … accepted as a legitimate creative activity.”[41] Toward this end OTW works to educate fan writers and published writers about copyright laws, particularly the open legal questions around fan fiction and other fan works.
OTW also maintains its own fan fiction archive, the Archive of Our Own, commonly called AO3. All fan fiction on the site is recognized as non-profit derivative works.[42]
It’s not that AO3 is “unresponsive” to DMCA/copyright notifications. What I meant was that the org that runs AO3, the OTW, is willing and ready, legally, to go to bat for fandom and for the rights of fanfiction authors to produce and publicly share fanfiction without profit (and are actually even working to change copyright laws to specifically protect fanfiction authors). If you’re following the rules AO3 set forth and someone wants to come for something you posted on AO3, they will almost certainly have to go through AO3’s legal dept, and AO3 is ready for them. Because the OTW knows that when someone comes for one of us, they come for all of us.
So… as long as we sticking to the rules of fair use, CAN someone try to come for us on AO3? Enngh. Well, maybe you’re right, they can try, I suppose- if they want an expensive headache that is very likely to go nowhere… but I don’t think even the rat has crossed that boundary.
And as a last point, I just want to reiterate: the majority of people that have waited to post, waited out of respect for Anne’s historical stance or out of a valid historical fear that has not applied in a while anyway. Anne actually reversed her stance from trying to disallow fanfiction to saying what amounts to “I was afraid of it a long time ago, and I still don’t understand it now, but you do you.” So like, just on that alone, I doubt the estate would do anything in the first place.
I have a brand new video up today on YouTube. Check it out for some insight into the sacred representational symbol of Sul'voth, as well as some info on working with Sul'voth!
I am not a lawyer, but I can decently interpret legalese and, being as I also suffer from tl;dr syndrome and assume others may as well, I took one for the team and went through the updated TOS for the post+ accounts and highlighted (what I understand to be) the most pertinent information, which ultimately comes down to this:
You cannot monetize copyrighted works (aka charge and earn money from fanfic, fanworks, etc) and if you do decide to put your fanworks behind a paywall via Tumblr, when you are inevitably sued, Tumblr will not protect you and will not defend you and you alone, personally, will be responsible for whatever monetary damages said lawsuit results in.
If anyone is a lawyer and knows I’ve gotten any of this wrong, please do not hesitate to correct me/this post.
1. Your paid account will not be hosted by tumblr; it is routed through a 3rd party.
2. By signing up for a paid account, you’re entering into an agreement with Stripe, so in addition to Tumblr’s TOS, you are also bound to Stripe’s TOS.
3. Stripe, like Tumblr, will notdefend you or protect you against any lawsuits.
4. Furthermore, you may end up owing Stripe money (indemnify = compensate)
5. Tumblr’s TOS specifically states that you can’t put any content on your post+ account that violates any laws, including laws that protect intellectual property rights of others. This is super important, because Tumblr’s post+ FAQ alsostates that you can post anything that you would regularly post on tumblr, which I’m sure many will take to mean that gifsets, fanworks, etc are fair game, since all of that stuff can be posted on tumblr now. However, the difference is, you’re not making money from the fanworks you’re posting or reblogging now. Once money enters the equation, the game changes.
Tumblr is making it seem like any and all content goes for post+ accounts, knowing 90% of this site is fanworks. This is not true and you’ll be opening yourself up for lawsuits if you charge for fanworks.
6. Tumblr further disclaims any and all liability in any legal issues.
tl;dr: Please do not make a post+ account, bc you will be opening yourself to lawsuits and if that happens, Tumblr’s response will be not our problem, you agreed to all the terms which said you couldn’t do that, sorry not sorry. Please protect yourself.
We do, however, want to address the main concerns we are hearing:
Fanfiction & Copyright Infringement
Basically, the process works the same as it always has. And yes, the following information is coming to you straight from a lawyer:
We fully support Creators sharing their fanfiction and fanart on Tumblr. We encourage sharing creative work of all kinds on the platform.
Fanfiction and fanart are frequently considered fair use and we support our Creators’ fair use rights. Monetizing fan work does not necessarily mean that it isn’t fair use.
Any content posted on Tumblr, both free and monetized, should follow our Terms of ServiceandCommunity Guidelines, which prohibits infringing the intellectual property rights of others. Whether a piece of fanfiction meets the requirements for fair use varies depending on the work. Intellectual property rights holders are in the best position to decide if they think a fanfiction or fan art violates their rights. If they do, they can use the normal Tumblr DMCA process to identify content for removal. Creators can also take advantage of the normal counter-notification process if they believe the content was misidentified as infringing.
So, basically, with a bit of fancy wording around it how it’s gonna be Totally Cool, No Worries on tumblr’s side, OP’s point still stands fully, imo.
Once again, I am not a lawyer, but here’s my interpretation (again, anyone who is a lawyer please correct me if I’m wrong) of the above post (because I think it’s deliberately misleading):
Basically, the process works the same as it always has. And yes, the following information is coming to you straight from a lawyer: We fully support Creators sharing their fanfiction and fanart on Tumblr. We encourage sharing creative work of all kinds on the platform.
Emphasis mine. This is worded very specifically; Tumblr is not supporting or encouraging you to sellyour fanworks. They are not encouraging you to charge for your fanworks. Share =/= sell.
We encourage you to share your fanworks
means
we encourage and support posts and reblogs containing copyrighted works, but we’re not telling you to SELL ANYTHING, so if you do, then the consequences are your problem.
Fanfiction and fanart are frequently considered fair use and we support our Creators’ fair use rights. Monetizing fan work does not necessarily mean that it isn’t fair use.
I think this is irresponsible wording bc it makes it seem like you have the right to charge for copyrighted works if you claim that your work falls under fair use - but how many of us actually know what fair use means?And if you don’t know what it means, how can you use it as a defense by claiming your work falls under it? I’ll be honest,Idon’t really know what all “fair use” entails but when I looked it up I found a pretty straightforward and thorough explanation that cleared things up for me.
In its most general sense, a fair use is any copying of copyrighted material done for a limited and “transformative” purpose, such as to comment upon,criticize, or parody a copyrighted work. Such uses can be done without permission from the copyright owner. In other words, fair use is a defense against a claim of copyright infringement. If your use qualifies as a fair use, then it would not be considered an infringement.
So what is a “transformative” use? If this definition seems ambiguous or vague, be aware that millions of dollars in legal fees have been spent attempting to define what qualifies as a fair use. There are no hard-and-fast rules, only general guidelines and varied court decisions, because the judges and lawmakers who created the fair use exception did not want to limit its definition. Like free speech, they wanted it to have an expansive meaning that could be open to interpretation.
Most fair use analysis falls into two categories: (1) commentary and criticism, or (2) parody.
Emphasis mine.
Translation: You can share your fanworks (we’re not telling you to sell them) and if you get in trouble, you can claim “fair use,” and if that defense doesn’t work because fair use isn’t applicable, we will not protect you from whatever legal ramifications you face.
Whether a piece of fanfiction meets the requirements for fair use varies depending on the work. Intellectual property rights holders are in the best position to decide if they think a fanfiction or fan art violates their rights.
I’m just going to say Anne Rice and leave it at that.
Okay, I’ll say more than that. Many authors, creators, etc won’t hesitate to, at the very least send you a cease and desist and, at the worst, file a lawsuit against you. This is why it’s so important that AO3 is non-profit and you can’t link to or mention your ko-fi, patreon, etc - because many ip rights holders do notconsider fanworks to be fair use and will go after authors (or artists, etc), so AO3’s legal defense rests on “nobody is making money or profiting from this.”
What Tumblr is doing is removing itself from any responsibility here by saying, okay, even if what you post isn’t considered fair use, it’s fine unless the person who owns that intellectual property decides to come after you, in which case, again, we are not going to protect you.
Tumblr went out of its way to say their statement on copyrights came directly from a lawyer. All this means to me is that Tumblr got their lawyer(s) to word their side in a way that protects them from any legal liabilitywhilestill encouraging you to profit off of copyrighted works, and they’re trying to make it seem like a lawyer has said this is fine, but that is very much not the case.
tl;dr: Copyright law and “fair use” are much more complicated than you might think, and the latter is probably not going to hold up as a defense if someone comes after you, and Tumblr still will not protect you. So again, by creating a post+ account and putting fanworks behind a paywall, you will be making yourself very vulnerable to legal action being taken against you and Tumblr will not do a thing to help you.
!!!!!!!If possible please reblog this version, re: tumblr’s stance on fair use. I’ve already seen a few people saying tumblr said it’s legal to monetize fanworks, so their post is definitely sending the wrong message to users.
