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.
“Transformative work is about repairing the deficiencies of canon” no, transformative works is about using canon as raw material. Sometimes that means fixing the canon. Sometimes it means making the canon worse. Sometimes it means slapping a pair of Groucho glasses and a silly hat on the canon and hoping nobody notices what’s really going on.
I understand and acknowledge the flaws of the source material, and I have prepared several new ones for people to get mad about.
Do you write fanfic? Do you enjoy consuming fanfic and other transformative works? Do you think there should be MORE fanfic and transformative works? What about making fanfiction that already exists more accessible? Do you ever wish you could be consuming fanfiction when you’re driving or doing the dishes?
If you answered yes to one or more questions, let me introduce you to an easy way to facilitate ALL OF THAT: having a Blanket Permission Statement!
A Blanket Permission Statement is permission from you, as a creator transformative work, for other people to produce a transformative work based on your stuff. This can be in your profile on AO3, a pinned tumblr post, in your bio or about page, basically anywhere it would make sense to check for a sweeping statement.
I’m going to be talking about podficcing (basically an audiobook of a fanfic), because that’s what I do, but Blanket Permission Statements can cover all kinds of transformative work–video, art, podfic, playlists, whatever.
BPs are not only kind to the more awkward or shy Podficcers, who otherwise have to track you down or leave a public comment, with all the nervewracking potential for receiving no response at all, or being told ‘no, to podfic is gross’ or being told 'yes! please!’ and then… not being able to complete the podfic. have mercy on our poor nerves, etc.
Now, “blanket permission” does not mean “here’s this thing I worked very hard on, do what you want with it” (I mean, it can, but it almost never does). You can and should include boundaries! If you want to be asked first, if you just want a heads up before posting, if you don’t want it posted to a particular site, if you don’t want stuff for a particular fandom recorded, if you want it locked to AO3-users only, if you have preferences on how you are linked or referred to in the podfic itself, include that information in your blanket permission statement.
Here’s my BP as an example, which is quite broad:
If you feel the urge to do anything transformative to anything I’ve put out there, this is your blanket permission to go for it! (Including podficcing, re-podifccing, remix, visual, audio, video, interpretive dance, anything up to but excluding reposting as your own.) Toss me a link when it’s up, and I will sow it into the ether.
Finally, here’s the fanlore page on Blanket Permission Statements for more information: https://fanlore.org/wiki/Blanket_statement
![I Met You On LJ → Episode #052: Tchotchkes & HeadcanonsTo my mind, [transformative works] are li](https://64.media.tumblr.com/75385c2155c24cebbd1c02972264b783/6cbe17b56f1c1720-91/s1280x1920/841d96d448ba8b57442ca7f3c70f2dc2dc42633b.png "I Met You On LJ → Episode #052: Tchotchkes & HeadcanonsTo my mind, [transformative works] are li")
