1. Steerpike
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    Steerpike Felis amatus Supporter Contributor

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    Authors and Intellectual Property Law

    Discussion in 'The Lounge' started by Steerpike, Jul 27, 2016.

    I'm giving a talk on the above-referenced topic next month. This will be to a group of authors, both published and unpublished. I have an outline that I generally use for such a talk, and instead of going through a formal speech I typically keep the talk casual and just make sure I hit all of the topics. In the interest of adding to and/or altering portions of the talk, I'm curious what each you would want to know if you were attending. What questions would you ask? If applicable, I'll incorporate some of these into the talk and post back here afterward.

    Thanks, all!
     
  2. BayView
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    BayView Contributing Member Contributor

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    Copyright vs. Trademark is always interesting - and the different implications of each.

    And maybe some of the close judgements in terms of whether something's protected or not - the extreme cases seem pretty clear, but the ones in the middle can be pretty surprising!
     
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  3. Steerpike
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    Steerpike Felis amatus Supporter Contributor

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    Thanks, BayView. I'll definitely be discussing trademarks. I like the idea of contrasting close cases - protection versus no protection. I like to talk about whether characters are protectable, for example. I have a funny case about non-human authorship as well :)
     
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  4. ChickenFreak
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    ChickenFreak Contributing Member Contributor

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    I continue to struggle with the contradiction, to me, between, "You can't copyright ideas, only their expression" and "But you can copyright plots and characters." I don't see plots and characters as expression, so these seem contradictory to me.

    Even if the nuances are too messy to explain, just stating that you CAN copyright plots and characters would have been news to me until fairly recently.
     
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  5. Steerpike
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    Steerpike Felis amatus Supporter Contributor

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    Thanks, @ChickenFreak. I'll make sure to talk about that point. It does make the lines between copyrightable and non-copyrightable subject matter a bit hazy. Copyright for plots and characters is typically more limited that copyright generally - someone really has to be reproducing specific elements of what you've done, not just a general idea (which is why we can have The Girl With All the Gifts and the video game The Last of Us existing together). We did, however, have a court decide the batmobile is a copyrightable character not so long ago...
     
  6. Tenderiser
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    Tenderiser Not a man Contest Administrator Contributor

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    A question I see a lot... Is it worth paying the fee to get your unpublished novel copyrighted?
     
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  7. BayView
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    BayView Contributing Member Contributor

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    It'd be good to have a step-by-step guide, or at least a list of options, for what to do if you ARE plagiarized. It might make people feel a bit more empowered and not think that it's quite such a tragedy as they seem to anticipate.

    I guess there are two sides to the issue for authors - how do we avoid making copyright violations, and how do we protect ourselves from copyright violations.

    Possibly a mention of the absolute inevitability of piracy as soon as anything is published. If authors know their work is going to be stolen no matter what they do, maybe they'll relax a bit about al the paranoia around it being stolen before it's even published.
     
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  8. Sack-a-Doo!
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    Sack-a-Doo! Contributing Member Contributor

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    How about Disney vs. public domain? In the last few years, I've heard that Disney has sued people for retelling public domain stories like Cinderella or Sleeping Beauty (don't remember which ones), especially when those retellings aren't family friendly or, on the other hand, too close to how Disney rewrote them.

    It might also be interesting to dig into how Walt himself used his influence in Washington to affect copyright laws.
     
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  9. Iain Aschendale
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    Iain Aschendale Contributed Member Contributor

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    Very specific, but how much does your own workmhave to change before it's freed of its previous copyright. For exajple, Arthur Clarke wrote "The Sentinel", which he later expanded and modified into "2001: A Space Odyssey". If he'd sold the first story, could he be sued for writing the second? Obviously, it didn't happen, but where is the line?
     
  10. BayView
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    BayView Contributing Member Contributor

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    In almost all cases, copyright is owned by the author, not the publisher. So it wouldn't really be a "free of copyright" issue, it'd be contractual. Which would obviously depend a lot on the individual contract...
     
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  11. Steerpike
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    Steerpike Felis amatus Supporter Contributor

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    Yeah, that's on my list. In general, I don't think it is worth registering the copyright until you've published it. This could end up being a good discussion topic.
     
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  12. Steerpike
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    Steerpike Felis amatus Supporter Contributor

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    Good ideas. I was planning to talk a bit about take down notices. When it comes to avoiding copyright violations, the theoretical answer is simple - don't copy. The copyright laws do not protect against independent creation, so if I wrote the entire Harry Potter series on my own, without ever having encountered the original, that's technically not a copyright violation. Of course, from a practical standpoint you'd have to convince a judge or jury that you really did create a work independently, and it's pretty easy for the other side to make its case.

    It's true that authors are going to pirated. Many writers seem to think it only happens to very successful writers. That's not true. Once your work is published, there's a good chance someone, somewhere, is going to pirate it. There used to be a massive torrent dedicated to self-published novels.
     
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  13. Steerpike
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    Steerpike Felis amatus Supporter Contributor

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    I'm interested to see the cases in which they filed suit, if you can find them. Disney would have rights to elements of characters from public domain works when those elements are 1) protectable by copyright; and 2) not present in the public domain. There have been a number of retellings of Sleeping Beauty, and I haven't heard of a lawsuit but who knows. I don't think they sued over Snow White and the Huntsman, either (Disney was originally approached to make the film). If they've brought suit, I assume they're focusing on non-public domain aspects of their versions.

    The Disney company (though not Walt, who was long dead) notably affected copyright law in 1998 with a copyright term extension in the U.S.
     
  14. Steerpike
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    Steerpike Felis amatus Supporter Contributor

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    Yes. As a general rule, if the publisher wants your copyright, find another publisher. There are exceptions.
     
  15. Mumble Bee
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    Mumble Bee The writer formerly known as Chained. Contributor

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    Fanfics are pretty big right now, anything on the dangers of your stuff getting muted?
     
  16. Steerpike
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    Steerpike Felis amatus Supporter Contributor

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    What do you mean, muted?
     
  17. Mumble Bee
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    Mumble Bee The writer formerly known as Chained. Contributor

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    I've heard of some shows/book series that don't like fan fiction about their work. Supposedly fair use is decided on a case by case basis for fan fiction and the media owners can force the author to have their work removed from whatever site its posted on.
     
  18. Steerpike
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    Steerpike Felis amatus Supporter Contributor

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    Yes, you could have your work taken down or even be subject to a lawsuit for copyright violation. A lot of authors are under the impression that fanfic somehow presents a gray area outside of normal copyright rules. It doesn't. The fact that you're not selling a work isn't automatically going to transform a copyright violation into a Fair Use. Many content creators don't care about fanfic, or even like it, so that's not a problem. But the normal copyright rules apply. If you're violating an author's copyright on a character, for example, then you are running a risk. On the other hand, if you're not violating a copyright (or, if applicable, a trademark), then you're safe. As you say, Fair Use is a decided on a case by case basis, so it is hard to predict ahead of time. If subject matter encroaches on a copyright, court's tend to start with the assumption that there is infringement and then start looking at Fair Use factors to see if the work moves out of the realm of infringement (Fair Use is an affirmative defense, which will protect the defendant in the case where her conduct would otherwise give rise to liability). The gray area is the normal area that exists around Fair Use, satire or parody, &c.
     
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  19. BayView
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    BayView Contributing Member Contributor

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    How about RPF fanfiction? Real Person Fiction, where the authors use celebrities as their characters. I bet half of the Supernatural fanfic is RPF, and I know there are fandoms built around sports, musical groups, etc.

    Obviously not copyright. Hard to argue invasion of privacy, since everyone knows it's fiction. But it still somehow seems dodgy...
     
  20. Mumble Bee
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    Mumble Bee The writer formerly known as Chained. Contributor

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    If its shown in the right format, you could have a War of the Worlds type situation. Like how a lot of people read The Onion and think the stories are true... are they liable for any damages?

    Also, I've been up for over 24 hours now, so, sorry if I'm not making sense anymore...
    I need sleep.
     
  21. Steerpike
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    Steerpike Felis amatus Supporter Contributor

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    That's generally going to be a right of publicity issue. The statutes in the U.S. vary state to state, instead of there being an overarching federal law. States like California and New York give strong protection. For example, the California Right of Publicity statute starts as follows:

    "Any person who knowingly uses another's name, voice, signature, photograph, or likeness, in any manner, on or in products, merchandise, or goods, or for purposes of advertising or selling, or soliciting purchases of, products, merchandise, goods or services, without such person's prior consent, or, in the case of a minor, the prior consent of his parent or legal guardian, shall be liable for any damages sustained by the person or persons injured as a result thereof."

    There's more to it, of course, and there are First Amendment limitations that would come into play as well. If you have a famous person in a book, is it there for the purpose of selling the work? Arguably, yes.
     
  22. Iain Aschendale
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    Iain Aschendale Contributed Member Contributor

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    I remember reading that there are something like 20 installments in the Chinese language version of Harry Potter. Apparently some Chinese fan-fiction authors just kept things going, and thanks to weak to non-existent copyright law there, they were published as "originals."

    That's got to be a mess.
     
  23. BayView
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    BayView Contributing Member Contributor

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    But if it's fanfic, not for sale or advertising, it would be okay?
     
  24. Iain Aschendale
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    Iain Aschendale Contributed Member Contributor

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    In the late 80s, early 90s, Vanna White sued an ad agency that made a commercial featuring a robot turning letters on a game show, arguing that since she, and she alone, was associated with Wheel of Fortune, the ad infringed on her right to publicity. From Smithsonian Magazine

     
  25. Steerpike
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    Steerpike Felis amatus Supporter Contributor

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    @BayView

    By way of example, Todd McFarlane, in one of his Spawn comics, had a mob villain name Anthony "Tony Twist" Twistelli. There was a hockey player who went by the name Tony Twist. He didn't like his name being used for a villain. Even though there wasn't much resemblance between the comic character and the hockey player, the hockey player sued and won a jury verdict. It was bounced around the appeals court, with damages somewhere in the $15 to $20 million range held up on appeal. McFarlane Productions ended up in bankruptcy, and I think the hockey play ultimately got $5 million out of it.
     

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