Books about fandom and TPTB

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rae_trail

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Oct 3, 2000, 3:00:00 AM10/3/00
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> T'Rhys wrote, re the "Joy of Trek" case,
>
> > I believe Paramount won.
>
> Paramount won a preliminary injunction in federal
> district court against
> selling the book, and the injunction was upheld by
> the Court of Appeals for
> the Second Circuit.
>
Is that because the authors are selling the book for
money? In that case, how does a research book,
article, whatnot about trek or fandom ever get out of
the starting gate? Does it have to be cleared by
TPTB? <shudder>

Karmen

*I share that <shudder>. I'm sure any pro-work MUST be approved by paraborg before publishing, printing, filming, etc. I think 'trekkies' was an exception, started and later approved during post production, but only because it made fun of Us, not Them.

Rae

[Non-text portions of this message have been removed]


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Karmen Ghia

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Oct 3, 2000, 3:00:00 AM10/3/00
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--- Duny...@aol.com wrote:
> T'Rhys wrote, re the "Joy of Trek" case,
>
> > I believe Paramount won.
>
> Paramount won a preliminary injunction in federal
> district court against
> selling the book, and the injunction was upheld by
> the Court of Appeals for
> the Second Circuit.
>
Is that because the authors are selling the book for
money? In that case, how does a research book,
article, whatnot about trek or fandom ever get out of
the starting gate? Does it have to be cleared by
TPTB? <shudder>

Karmen

=====
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Duny...@aol.com

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Oct 3, 2000, 3:00:00 AM10/3/00
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In a message dated 10/3/2000 12:44:57 PM Eastern Daylight Time,
karmen...@yahoo.com writes:

> Is that because the authors are selling the book for
> money?

According to the district court: The book was a commercial product, it was
not a reasearch study, and it used "too much" material from the Star Trek
series.

Judith

Mosca

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Oct 3, 2000, 3:00:00 AM10/3/00
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At 09:43 AM 10/3/2000 -0700, you wrote:
>--- Duny...@aol.com wrote:
>> T'Rhys wrote, re the "Joy of Trek" case,
>>
>> > I believe Paramount won.
>>
>> Paramount won a preliminary injunction in federal
>> district court against
>> selling the book, and the injunction was upheld by
>> the Court of Appeals for
>> the Second Circuit.
>>
>Is that because the authors are selling the book for
>money? In that case, how does a research book,
>article, whatnot about trek or fandom ever get out of
>the starting gate? Does it have to be cleared by
>TPTB? <shudder>

Nope. Research and analysis-- including criticism of the episodes (like
the kind found in the Nitpicker's Guides)-- is legal under fair use. The
problem here, as with the websites, was that they reproduced images and
dialogue so much that there *wasn't* a whole lot of meaningful analysis.
The copyrighted material was there not so that the writer could discuss
Orwellian imagery in "Chain of Command," or to show an image of a
bare-chested Spock as an example of homoeroticism in Trek, but so that the
reader could see those images or movies, or read the dialogue, without
Paraborg's permission. Copyright and fair use are based on whether a work
is substantially original, not whether a work draws on earlier
publications. If the latter were true, my dreams of a career in literary
criticism would be pretty much shot down by the law.

For one of my classes, I'm working on a paper about fanfic and its
relationship to copyright and trademark law. Fanfic is *way* different
from copying an entire movie trailer or bootlegging a script. Or so I
intend to argue. =+) (Yes, I've read Judith Gran's essay on the subject--
my prof and I want to make a more scholarly/technical argument, and
basically to expand on a lot of her *suspicions* about fanfic and fair use
with legal precedent.)

Well, that was long.

Mosca


And you can tell Rolling Stone Magazine that my last words were, "I'm on
drugs!"

J S Cavalcante

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Oct 3, 2000, 3:00:00 AM10/3/00
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Message text written by INTERNET:ASC...@egroups.com

>For one of my classes, I'm working on a paper about fanfic and its
>relationship to copyright and trademark law. Fanfic is *way* different
>from copying an entire movie trailer or bootlegging a script. Or so I
>intend to argue. =+) (Yes, I've read Judith Gran's essay on the subject--
>my prof and I want to make a more scholarly/technical argument, and
>basically to expand on a lot of her *suspicions* about fanfic and fair use
>with legal precedent.)

>Mosca
<

That's very cool, Mosca; I hope you're eventually going to post your paper
so that we can read it.

There is a more scholarly/technical one posted online somewhere. I might
be able to dig up the URL, and I seem to remember that there is a link to
it in either the Brill's Content (May issue) or the Slate magazine article
on slash. Will find the URL for you if you haven't seen it.

LL&P
J S

Mosca

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Oct 4, 2000, 3:00:00 AM10/4/00
to
At 10:12 PM 10/3/2000 -0400, you wrote:
>Message text written by INTERNET:ASC...@egroups.com
>>For one of my classes, I'm working on a paper about fanfic and its
>>relationship to copyright and trademark law. Fanfic is *way* different
>>from copying an entire movie trailer or bootlegging a script. Or so I
>>intend to argue. =+) (Yes, I've read Judith Gran's essay on the subject--
>>my prof and I want to make a more scholarly/technical argument, and
>>basically to expand on a lot of her *suspicions* about fanfic and fair use
>>with legal precedent.)
>
>>Mosca
><
>
>That's very cool, Mosca; I hope you're eventually going to post your paper
>so that we can read it.

I will post it if I can, but if it gets published I may not be allowed to
do so. Of course, I will encourage the journal to put my article online,
and most journals dealing with technology and law issues would probably
have some sort of web resource. If not, I'll see if I can get permission
to put it on a webpage myself. I probably will not be able to post it
directly to the list/ng, though.

>There is a more scholarly/technical one posted online somewhere. I might
>be able to dig up the URL, and I seem to remember that there is a link to
>it in either the Brill's Content (May issue) or the Slate magazine article
>on slash. Will find the URL for you if you haven't seen it.

Thank you! It will probably be of some help. If nothing else, I'll get to
see what's already been covered...

Mosca


And you can tell Rolling Stone Magazine that my last words were, "I'm on
drugs!"

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J S Cavalcante

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Oct 4, 2000, 3:00:00 AM10/4/00
to
Message text written by INTERNET:ASC...@egroups.com
>>There is a more scholarly/technical one posted online somewhere. I might
>>be able to dig up the URL, and I seem to remember that there is a link to
>>it in either the Brill's Content (May issue) or the Slate magazine
article
>>on slash. Will find the URL for you if you haven't seen it.

>Thank you! It will probably be of some help. If nothing else, I'll get
to
>see what's already been covered...

>Mosca

Found it. The link is in the Slate magazine article "Luke Skywalker is
Gay?" (http://slate.msn.com/Features/fanfic/fanfic.asp)

The copyright law article was published in a law journal in 1997. Here's
the URL:

http://www.tushnet.com/law/fanficarticle.html

Enjoy. <g>

LL&P
J S

Duny...@aol.com

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Oct 5, 2000, 3:00:00 AM10/5/00
to
Mosca, if you read what I think you read, it is not an "essay" but a
contribution to the lettercol of a now-defunct TOS newsletter . As I recall,
I was responding to another fan's fear that TPTB might file a lawsuit to shut
down fan fiction in zines. The trib certainly was not meant to be scholarly
or to do anything more than suggest some of the issues that would arise in
litigation should TPTB actually take such an unlikely action. Years ago, I
agreed to a request from another fan to post the article on a website.
Perhaps this was foolish, since I certainly did not intend that my legal
scholarship be judged on the basis of a lettercol trib.

I wrote a much longer analysis for the Star Wars zine Kessel Run in the early
1980s. called "In Whose Back Yard?" Bu tit's not available electronically as
far as I know.

> Yes, I've read Judith Gran's essay on the subject

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Duny...@aol.com

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Oct 5, 2000, 3:00:00 AM10/5/00
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J.S. wrote,

> The copyright law article was published in a law journal in 1997. Here's
> the URL:

Rebecca Tushnet sent me a copy of the article before it was published. I
haven't read it closely in a while, and it's almost 5 AM in my time zone so
my thoughts are a little fuzzy, but these were some of my questions and
concerns about the article:

(1) I thought the discussion of characters and copyright needed more focus.
"Characters" are not subject matter of copyright under the statute. Only
*works* are subject matter of copyright, characters aren't. Whether using the
characters created by someone else is a copyright violation is the subject of
an old line of cases, mostly in the Ninth Circuit (where Hollywood is
located). Somewhere along the way in this rather anomalous body of case law,
someone started using the term "character copyrightability." Actually, the
statutory right at issue in these cases was the right to prepare derivative
works, i.e., a sequel or other derivative work using the same characters. It
would be wonderful, Mosca, if your article could provide a clear, scholarly
analysis of the copyright law issues raised by use of the characters who
appear in a work that is protected by copyright.

(2) I did not see any mention of estoppel -- a doctrine that may shield fans
from liabilty for alleged infringement on the ground that TPTB knew about,
and tolerated, fans' use of materials in their copyrighted works. Again, I
think this would be a great issue for scholarly analysis.

(3) I disagree, substantively, about the copyrightability of original works
of fan fiction. In my opinion, those works are proper subject matter of
copyright, but the fan author's copyright extends only to the original
material in the work.

I know there were other issues, but this is what I remember right now.

Judith

Mosca

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Oct 5, 2000, 3:00:00 AM10/5/00
to
At 04:28 AM 10/5/2000 EDT, you wrote:
>Mosca, if you read what I think you read, it is not an "essay" but a
>contribution to the lettercol of a now-defunct TOS newsletter .

Well, it read like an essay/article, which is a credit to you. It's quite
well written.

As I recall,
>I was responding to another fan's fear that TPTB might file a lawsuit to
shut
>down fan fiction in zines. The trib certainly was not meant to be scholarly
>or to do anything more than suggest some of the issues that would arise in
>litigation should TPTB actually take such an unlikely action. Years ago, I
>agreed to a request from another fan to post the article on a website.
>Perhaps this was foolish, since I certainly did not intend that my legal
>scholarship be judged on the basis of a lettercol trib.

Of course not. And upon rereading it, I realized that you'd made it pretty
clear that you'd done a lot more research than was reflected in that short
summary of the issues. I don't think that posting it was a foolish thing
to do, as most people looking for information on copyright and fanfic will
have plenty there to ease their minds, but I admit to thinking after the
first reading that this speculation was the extent of your research on the
topic. Sorry.

>I wrote a much longer analysis for the Star Wars zine Kessel Run in the
early
>1980s. called "In Whose Back Yard?" Bu tit's not available electronically as
>far as I know.

Is there any way I could get a copy of this? It would be a bit out of
date, of course-- there have been a lot of internet-related cases since
then-- but it would be interesting to see if you'd let me have it. E-mail
me offlist if this can be arranged.

Mosca


And you can tell Rolling Stone Magazine that my last words were, "I'm on
drugs!"

~*~*~*~*~*~*~*~*~*~*~*~*~*~*~*~*~*~*~*~*~*~*~*~*~*~*~*~*~*~*~*~*~*~*~

Mosca

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Oct 5, 2000, 3:00:00 AM10/5/00
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At 05:29 AM 10/5/2000 EDT, you wrote:

Thanks so much for the suggestions, Judith! This provides a lot of help.
My prof knows a lot of general information about copyright and fair use,
but he's not particularly knowledgeable about this particular issue-- it's
great to have this guidance. (Yes, at this point, it looks like I'm likely
to cite you just for your e-mails. Cool.)

I'm sending this privately because I know there's at least one other person
on ASCEM doing research on related topics, and I want to keep some of this
information off the public forum for now. =+)

>Rebecca Tushnet sent me a copy of the article before it was published. I
>haven't read it closely in a while, and it's almost 5 AM in my time zone so
>my thoughts are a little fuzzy, but these were some of my questions and
>concerns about the article:
>
>(1) I thought the discussion of characters and copyright needed more focus.
>"Characters" are not subject matter of copyright under the statute. Only
>*works* are subject matter of copyright, characters aren't. Whether using
the
>characters created by someone else is a copyright violation is the subject
of
>an old line of cases, mostly in the Ninth Circuit (where Hollywood is
>located). Somewhere along the way in this rather anomalous body of case law,
>someone started using the term "character copyrightability." Actually, the
>statutory right at issue in these cases was the right to prepare derivative
>works, i.e., a sequel or other derivative work using the same characters. It
>would be wonderful, Mosca, if your article could provide a clear, scholarly
>analysis of the copyright law issues raised by use of the characters who
>appear in a work that is protected by copyright.

This is actually pretty close to one of the things I was going to be
focusing on-- where copyright ends and trademark begins in relation to
characters, settings (like the Enterprise), etc. There's that basic
principle behind copyright that one "can't copyright an idea," and I want
to see what the courts are considering ideas and what they're considering
works these days.

>(2) I did not see any mention of estoppel -- a doctrine that may shield fans
>from liabilty for alleged infringement on the ground that TPTB knew about,
>and tolerated, fans' use of materials in their copyrighted works. Again, I
>think this would be a great issue for scholarly analysis.

I'm certainly going to look into this, especially because it looks to me
like there has been little, if any, action against fanfic websites or
fanzines by copyright holders. A *big* part of my research is likely to be
in the direction of finding out why this is. I'm going to try and contact
the mysterious John Ordover and see if I can get even a canned response
about that.

>(3) I disagree, substantively, about the copyrightability of original works
>of fan fiction. In my opinion, those works are proper subject matter of
>copyright, but the fan author's copyright extends only to the original
>material in the work.

I'm not there yet, but I'm starting to suspect that it's largely a
trademark issue: that if we all wrote to Paramount for permission to use
their characters, and they granted it, our fanfic would be fully
copyrightable. But I'm not *nearly* there yet.

>I know there were other issues, but this is what I remember right now.

There were some cases she cited whose relationship to fanfic seemed
questionable to me. Can't remember them offhand, though, and I am late for
an appointment...

Mosca

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Oct 5, 2000, 3:00:00 AM10/5/00
to
At 04:25 PM 10/4/2000 -0400, you wrote:
>Message text written by INTERNET:ASC...@egroups.com
>>>There is a more scholarly/technical one posted online somewhere. I might
>>>be able to dig up the URL, and I seem to remember that there is a link to
>>>it in either the Brill's Content (May issue) or the Slate magazine
>article
>>>on slash. Will find the URL for you if you haven't seen it.
>
>>Thank you! It will probably be of some help. If nothing else, I'll get
>to
>>see what's already been covered...
>
>>Mosca
>
>Found it. The link is in the Slate magazine article "Luke Skywalker is
>Gay?" (http://slate.msn.com/Features/fanfic/fanfic.asp)
>
>The copyright law article was published in a law journal in 1997. Here's
>the URL:
>
>http://www.tushnet.com/law/fanficarticle.html
>
>Enjoy. <g>

"Enjoy" wouldn't have been the word for it, but it was an interesting
article. Kind of flawed, which is good for me-- it means there's something
left to say. Exuberant thanks for the link.

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