Copyright and Filk Songs
Jordan S. Bassior
from recording a filk song about her St. Germain stories by threatening to sue
them over it. Now, this slightly confuses me. The way I always understood the
copyright laws to operate, parodies are permissible. Was this a case of the
filk songster unnecessarily wimping out, or would Ms. Yarbro have had a valid
legal argument here?
--
Sincerely Yours,
Jordan
--
"To urge the preparation of defence is not to assert the imminence of war. On
the contrary, if war were imminent, preparations for defense would be too
late." (Churchill, 1934)
--
Dorothy J Heydt
Jordan S. Bassior <jsba...@aol.com> wrote:
>I heard from a friend that Chelsea Quinn Yarbro successfully prevented someone
>from recording a filk song about her St. Germain stories by threatening to sue
>them over it. Now, this slightly confuses me. The way I always understood the
>copyright laws to operate, parodies are permissible. Was this a case of the
>filk songster unnecessarily wimping out, or would Ms. Yarbro have had a valid
>legal argument here?
I have not heard a tale about Quinn and a filksong. I think you
may have heard a distorted version of what happened some years
ago, as follows.
The publisher of a fanzine, a fairly good-quality one, wrote to
Quinn asking permission to print a fan-written story about her
vampire character. Quinn, as she always does in such cases,
wrote back, "No, I do not give permission; that character is mine
and you can't mess with him; make up your own vampires as I did."
Some time later Quinn's agent was at a party and came across a
copy of the fanzine, with the story in it, prefaced by an
editorial comment to the effect of "We asked Chelsea Quinn Yarbro
if we could publish this, and she said No, but it's so good that
we're going to publish it anyway and hope she will forgive us."
Thinking quickly, the agent asked her host if she could borrow
the fanzine "so I can read it in peace and quiet when the party's
over." She brought it to Quinn next day and they held a council
of war.
-------------digression explaining what it was all about--------
The problem, basically, is not only that Quinn feels (and so do I
and so do many others) that her character properly and morally
belongs to her, and should be free from being mucked about with
by others; but that her character *legally* belongs to her and
should not be infringed upon by others without suffering the
penalties of the law.
An additional perspective: at the time all this happened, a movie
studio was negotiating with Quinn and her agent about the
possibility of a movie or series of movies about her vampire;
they would have had to pay her for the rights to do this, even if
they wrote a whole 'nother plot for him to appear in. If her
character went into the public domain, they would have had to pay
her nothing; and if Quinn let this fan story go its way
(particularly after the comment ~"she said no but we're going to
do it anyway"~) without taking legal action, she was in effect
releasing the character into the public domain.
Whether a character can in fact be intellectual property, whether
it can be copyrighted, is still being argued out in the courts
here and there, but one thing is certain: if you want to maintain
a legal claim to something, you must defend it whenever you learn
that it has been infringed. This is why lawyers connected to
companies write you nasty letters if you use a trademarked name
generically in print. They are not going to sue you really, but
they are going to object as vigorously as they can, to protect
their client's trademark.
----------------------end digression-------------
So Quinn's lawyer wrote to the fanzine publisher and writer and
said, "You have infringed on Ms. Yarbro's copyrights; you must
make amends by putting a formal apology in _Publisher's Weekly_,
pulling and destroying all copies of the offending publication,
and paying monetary damages."
And the fans replied, "What? You've got to be kidding! Why,
it's a COMPLIMENT to an author if fans write fanstories about her
stuff."
This discussion continued for a long time.
Quinn's lawyer eventually managed to drum it into the fans' thick
heads that they were in the wrong, and they did publish the
apology and pulled all the copies they could find of the
offending issue. There were no monetary damages because they had
no money.
Quinn is still steaming about it, years later.
Dorothy J. Heydt
Albany, California
djh...@kithrup.com
http://www.kithrup.com/~djheydt
Mark Atwood
> I heard from a friend that Chelsea Quinn Yarbro successfully
> prevented someone from recording a filk song about her St. Germain
> stories by threatening to sue them over it. Now, this slightly
> confuses me. The way I always understood the copyright laws to
> operate, parodies are permissible. Was this a case of the filk
> songster unnecessarily wimping out, or would Ms. Yarbro have had a
> valid legal argument here?
IANAL, but...
The the parody defense would protect you against being sued by whoever
owned the copyright on the tune or the lyrics you were basing your
filk on.
FerEx, "Weird Al" Yankovick can use the parody defence to rip off the
music and lyrical beat patterns of the songs he "does". (He doesn't
tend to use this approach tho, preferring to ask permission.)
However, this wouldn't give you protection against a suit brought over
the original parts of your filk. If, ferex, you filked a Maria Lopez
song, but made the lyrics tell the story about how Mz Lopez's songs
are actaully about $SOCIALLY_UNACCEPTABLE_IDEA, and that she routinely
performs $SOCIALLY_UNACCEPTABLE_ACT, especially if you had a
reputation of "storytelling songs" and made it so catchy that everyone
is singing it...
Well then, she would probably would sue you over it.
--
Mark Atwood | I'm wearing black only until I find something darker.
m...@pobox.com | http://www.pobox.com/~mra
Sea Wasp
> -------------digression explaining what it was all about--------
>
> The problem, basically, is not only that Quinn feels (and so do I
> and so do many others) that her character properly and morally
> belongs to her, and should be free from being mucked about with
> by others; but that her character *legally* belongs to her and
> should not be infringed upon by others without suffering the
> penalties of the law.
>
> An additional perspective: at the time all this happened, a movie
> studio was negotiating with Quinn and her agent about the
> possibility of a movie or series of movies about her vampire;
> they would have had to pay her for the rights to do this, even if
> they wrote a whole 'nother plot for him to appear in. If her
> character went into the public domain, they would have had to pay
> her nothing; and if Quinn let this fan story go its way
> (particularly after the comment ~"she said no but we're going to
> do it anyway"~) without taking legal action, she was in effect
> releasing the character into the public domain.
>
> Whether a character can in fact be intellectual property, whether
> it can be copyrighted, is still being argued out in the courts
> here and there, but one thing is certain: if you want to maintain
> a legal claim to something, you must defend it whenever you learn
> that it has been infringed.
I think this is a bit fuzzy in law -- perhaps a Real Lawyer (TM)
could step in here. The Berne Convention (which now informs US
Copyright law) doesn't, as far as I can tell, say that you lose your
copyright just because someone else steals your work. You may be
unable to defend your work (lack of funds), unwilling to do so because
of other considerations (one of the people happens to be a friend or
an influential fan), or of course unaware of it.
As far as CHARACTERS, as far as I've ever known you cannot
"copyright" a character, any more than you can copyright an idea. What
you CAN do is TRADEMARK the character. Now, TRADEMARKS do have a long
legal history and precedent requiring them to be vigorously defended.
This is the reason that Disney comes down like a ton of bricks on
anyone attempting to use The Mouse in any non-sanctioned way. It's
also why they have to extend the copyright on Steamboat Willie as long
as they can, because if their trademarked character is part of a
public domain item, I suspect their trademark suddenly becomes
SEVERELY diluted.
On a MORAL level, I agree with you. I invented Jason Wood. I wrote
his stories, designed the world in which he and his friends, enemies,
allies, acquaintances, and so on exist, and decided how and why every
one of those things fits together. Now, if someone completely
unbeknownst to me writes up a fanfic in that universe and spreads it
around, I would, as a general rule, consider that a compliment if I
ever learned of it. Even if the fanfic sucked -- having written bad
fanfic of my own, one must be tolerant of that in others.
HOWEVER, if someone went to me for permission and was DENIED it --
for whatever reason -- I would consider it EXTREMELY offensive for
them to go ahead and publish, and would try to find some legal way to
give them a slapping around for that. Not because I am against the
concept of fanfiction, or even insensitive to the compliment of
someone liking my creations so much that they wanted to play in that
universe, but because what they are doing is *RUDE*. If you aren't
willing to take the chance that the answer will be "no", then for
god's sake DON'T ASK.
--
Sea Wasp http://www.wizvax.net/seawasp/index.html
/^\
;;; _Morgantown: The Jason Wood Chronicles_, at
http://www.hyperbooks.com/catalog/20040.html
Terry Austin
>
>An additional perspective: at the time all this happened, a movie
>studio was negotiating with Quinn and her agent about the
>possibility of a movie or series of movies about her vampire;
>they would have had to pay her for the rights to do this, even if
>they wrote a whole 'nother plot for him to appear in. If her
>character went into the public domain, they would have had to pay
>her nothing; and if Quinn let this fan story go its way
>(particularly after the comment ~"she said no but we're going to
>do it anyway"~) without taking legal action, she was in effect
>releasing the character into the public domain.
That is not correct. Trademarks, and, IIRC, patents can be lost that way,
but copyrights cannot. What can happen is that a derivative copyright can be
created that the original author cannot infringe on without permission of
the fan author, but this in no way dilutes the original copyright.
>
>Whether a character can in fact be intellectual property, whether
>it can be copyrighted, is still being argued out in the courts
>here and there,
Character copyrights have been upheld in court.
> but one thing is certain: if you want to maintain
>a legal claim to something, you must defend it whenever you learn
>that it has been infringed. This is why lawyers connected to
>companies write you nasty letters if you use a trademarked name
>generically in print.
Trademarks can be lost from not defending them. Copyrights cannot.
> They are not going to sue you really, but
>they are going to object as vigorously as they can, to protect
>their client's trademark.
Depending on the value of the mark, they may well sue you. Also, threatening
to sue someone if you have no intention of doing so is a criminal offense in
most states.
--
Terry Austin <tau...@hyperbooks.com>
http://www.hyperbooks.com/
If you don't use both your left brain and right brain,
you've basically just got half a brain.
-John Rudd
Terry Austin
>jsba...@aol.com (Jordan S. Bassior) writes:
>
>> I heard from a friend that Chelsea Quinn Yarbro successfully
>> prevented someone from recording a filk song about her St. Germain
>> stories by threatening to sue them over it. Now, this slightly
>> confuses me. The way I always understood the copyright laws to
>> operate, parodies are permissible. Was this a case of the filk
>> songster unnecessarily wimping out, or would Ms. Yarbro have had a
>> valid legal argument here?
>
>IANAL, but...
>
>The the parody defense would protect you against being sued by whoever
>owned the copyright on the tune or the lyrics you were basing your
>filk on.
>
>FerEx, "Weird Al" Yankovick can use the parody defence to rip off the
>music and lyrical beat patterns of the songs he "does". (He doesn't
>tend to use this approach tho, preferring to ask permission.)
And, in general, if he gets a "no" answer, he abandons the project. He
seemed quite distraught over the misunderstanding with whatever rapper took
offense at a song Yankovick though he had permission to do.
J.B. Moreno
> I think this is a bit fuzzy in law -- perhaps a Real Lawyer (TM)
> could step in here. The Berne Convention (which now informs US
> Copyright law) doesn't, as far as I can tell, say that you lose your
> copyright just because someone else steals your work. You may be
> unable to defend your work (lack of funds), unwilling to do so because
> of other considerations (one of the people happens to be a friend or
> an influential fan), or of course unaware of it.
If it applies to real property (and it does) I don't see why it wouldn't
apply to intellectual property -- lack of objection is taken as tactic
approval. If someone is using your property and you know about it and
don't object, well, they're going to have a good case saying that it is
now /their's/.
--
JBM
"Moebius strippers only show you their back side." -- Unknown
Mark Atwood
>
> And, in general, if he gets a "no" answer, he abandons the project. He
> seemed quite distraught over the misunderstanding with whatever rapper took
> offense at a song Yankovick though he had permission to do.
I am given to understand that more likely what happened was that said
rapper decided that he could get more publicity out using the "deniable
plausibility" of "he didn't check with the right agent" to have that
disagreement and throw a small tantrum at an awards ceremony.
"Weird Al"'s verion was better written, better produced, and told a
more coherent story, IMO.
Sea Wasp
>
> Sea Wasp <sea...@wizvax.net> wrote:
>
> > I think this is a bit fuzzy in law -- perhaps a Real Lawyer (TM)
> > could step in here. The Berne Convention (which now informs US
> > Copyright law) doesn't, as far as I can tell, say that you lose your
> > copyright just because someone else steals your work. You may be
> > unable to defend your work (lack of funds), unwilling to do so because
> > of other considerations (one of the people happens to be a friend or
> > an influential fan), or of course unaware of it.
>
> If it applies to real property (and it does) I don't see why it wouldn't
> apply to intellectual property -- lack of objection is taken as tactic
> approval.
You mean "tacit".
Um, real property and intellectual are differentiated in a number of
practical and legal areas. The most obvious is that I can't go to a
xerox machine and run off a dozen copies of my house, complete with
land, water&power hookups, etc, that are as good as the original.
Someone else can't copy it and revise it without having taken it from
me, either.
These are some of the points that get made regularly, and argued
about, in all kinds of debates about the subject of copyright.
I know the Berne Convention is considered the basis of copyright law
in a large number of countries, including this one, and that a number
of other countries are less worried about fan actions than ours are --
and since those other countries have powerful companies just as
concerned with retaining their rights to their property, I have some
reason to believe what I've been told -- that the Berne Convention's
rules assume that you retain copyright in your material unless you
EXPLICITLY give it up.
Jeanne A. E. DeVoto
<pl...@newsreaders.com> wrote
>Sea Wasp <sea...@wizvax.net> wrote:
>> could step in here. The Berne Convention (which now informs US
>> Copyright law) doesn't, as far as I can tell, say that you lose your
>> copyright just because someone else steals your work.
>
>apply to intellectual property -- lack of objection is taken as tactic
>approval.
You'd be wrong, though. Trademark is the only monopoly that you lose if
you don't defend it against encroachment. Copyright and patent can't be
lost in this way. (This even makes a certain amount of sense, since the
purpose of trademark is to identify a business unambiguously to the
public, and if someone else is using your trademark for any length of
time, it's no longer an unambiguous identifier.)
(Of course, that's using an original purpose analysis of trademark,
which doesn't necessarily apply to these latter days in which many
businesses (ab)use trademark as a sort of mini-copyright in order to
get the benefits of both while being, arguably, entitled to neither.
But that is another story.)
Even if copyright *were* a sue-for-it-or-lose-it proposition, however,
I'd have a problem with any author who demands books be burned in order
to suppress an original work of fiction by someone else. Even if that
work uses one of the author's characters, and even if the author feels
justifiable annoyance about the way in which it was done, that's beyond
the pale.
--
Morning people may be respected, but night people are feared.
Reverend Sean O'Hara
> Whether a character can in fact be intellectual property, whether
> it can be copyrighted, is still being argued out in the courts
> here and there,
I don't know about copyright, but you can certainly trademark a
name. Witness the Doyle estate and Sherlock Holmes.
--
Sean O'Hara
You too can be an ordained minister: http://www.ulc.org
Culture Editor for "Expulsion": http://www.expulsion.org
"You teach a child to read and he or her will be able to pass
a literacy test." -- Dubya the Shrub (Grammar tests still optional)
Terry Austin
>Terry Austin <tau...@hyperbooks.com> writes:
>>
>> And, in general, if he gets a "no" answer, he abandons the project. He
>> seemed quite distraught over the misunderstanding with whatever rapper took
>> offense at a song Yankovick though he had permission to do.
>
>I am given to understand that more likely what happened was that said
>rapper decided that he could get more publicity out using the "deniable
>plausibility" of "he didn't check with the right agent" to have that
>disagreement and throw a small tantrum at an awards ceremony.
>
>"Weird Al"'s verion was better written, better produced, and told a
>more coherent story, IMO.
That's true of a number of Weird Al pieces, including _The Saga Begins_.
Joe Slater
>I don't know about copyright, but you can certainly trademark a
>name. Witness the Doyle estate and Sherlock Holmes.
You might not be able to advertise a book as "A Sherlock Holmes (tm)
Novel", but (at least in Australia) I'm pretty sure that you can write
a book with him as the hero.
jds
--
Hi! I'm a .signature virus! Copy me into your ~/.signature to help me spread!
Hi!p I'm a .signature spread virus! Copy into your ~/.signature to help me!
Hilp I'm .sgn turepead virus! into your ~/.signature! help me! Copy
Help I'm traped in your ~/.signature help me!
Norm N. Conquest
and breadth of Usenet as 'Terry Austin <tau...@hyperbooks.com>' opined:
>And, in general, if he gets a "no" answer, he abandons the project. He
>seemed quite distraught over the misunderstanding with whatever rapper took
>offense at a song Yankovick though he had permission to do.
The rapper in question was Coolio and the song was "Gangsta's Paradise" which
was featured prominently in the movie "Dangerous Minds" starring Michelle
Pfeiffer. Weird Al Yankovic wanted to redo the song as "Amish Paradise" and as
he always does, he asked permission first (through his agents and through
Coolio's agents). There was a miscommunication and Weird Al thought he had
permission to go ahead. Evidently Coolio thought otherwise.
Coolio's explanation was that the subject matter of the original song was too
important (I almost say 'sacred') to be mocked in parody fashion.
He never sued Weird Al about it. The only thing I heard him say was something
to the effect that "I hope your version sells lots of copies so I can make lots
of money" or words to that effect.
A symphony of language, like gorgeous vision;
Must urge a shadow scream beneath delicate skin
Mike Schilling
news:20010303054140...@ng-mb1.aol.com...
> I heard from a friend that Chelsea Quinn Yarbro successfully prevented
someone
> from recording a filk song about her St. Germain stories by
threatening to sue
> them over it. Now, this slightly confuses me. The way I always
understood the
> copyright laws to operate, parodies are permissible. Was this a case
of the
> filk songster unnecessarily wimping out, or would Ms. Yarbro have had
a valid
> legal argument here?
Not sure if the law is confused here, or merely confusing. Mad Magazine
won when sued for publishing song parodies, that is, alternate words to
copyrighted songs. On the other hand, Vanna White successfuly sued the
makers of a commerical depicting a female-shaped robot turing letters on
a futuristic game show, which was clesrly a parody of Wheel of Fortune.
Terry Austin
>On Sat, 03 Mar 2001 11:25:38 -0800, silence reigned supreme across the length
>and breadth of Usenet as 'Terry Austin <tau...@hyperbooks.com>' opined:
>
>
>>And, in general, if he gets a "no" answer, he abandons the project. He
>>seemed quite distraught over the misunderstanding with whatever rapper took
>>offense at a song Yankovick though he had permission to do.
>
>The rapper in question was Coolio and the song was "Gangsta's Paradise" which
>was featured prominently in the movie "Dangerous Minds" starring Michelle
>Pfeiffer.
That's the one.
>Weird Al Yankovic wanted to redo the song as "Amish Paradise" and as
>he always does, he asked permission first (through his agents and through
>Coolio's agents). There was a miscommunication and Weird Al thought he had
>permission to go ahead. Evidently Coolio thought otherwise.
Or so he said after the fact. His protests always sounded a bit hollow to
me.
>
>Coolio's explanation was that the subject matter of the original song was too
>important (I almost say 'sacred') to be mocked in parody fashion.
>
>He never sued Weird Al about it. The only thing I heard him say was something
>to the effect that "I hope your version sells lots of copies so I can make lots
>of money" or words to that effect.
>
It'd take a real fool to sue Weird Al. Especially in what is quite obviously
parody, which *is* protected.
Terry Austin
A commercial is also clearly commercial in nature, which is where a parody
gets tripped up the easiest. And the law is fairly confused in a narrow gray
area where something is both commercial and parody. And confus*ing*, as
well.
Robert.Whelan
On Sat, 3 Mar 2001, Terry Austin wrote:
> alask...@my-deja.com (Norm N. Conquest) wrote:
>
> >On Sat, 03 Mar 2001 11:25:38 -0800, silence reigned supreme across the length
> >and breadth of Usenet as 'Terry Austin <tau...@hyperbooks.com>' opined:
> >
> >
> >>And, in general, if he gets a "no" answer, he abandons the project. He
> >>seemed quite distraught over the misunderstanding with whatever rapper took
> >>offense at a song Yankovick though he had permission to do.
> >
> >The rapper in question was Coolio and the song was "Gangsta's Paradise" which
> >was featured prominently in the movie "Dangerous Minds" starring Michelle
> >Pfeiffer.
>
> That's the one.
>
> >Weird Al Yankovic wanted to redo the song as "Amish Paradise" and as
> >he always does, he asked permission first (through his agents and through
> >Coolio's agents). There was a miscommunication and Weird Al thought he had
> >permission to go ahead. Evidently Coolio thought otherwise.
>
> Or so he said after the fact. His protests always sounded a bit hollow to
> me.
> >
> >Coolio's explanation was that the subject matter of the original song was too
> >important (I almost say 'sacred') to be mocked in parody fashion.
> >
> >He never sued Weird Al about it. The only thing I heard him say was something
> >to the effect that "I hope your version sells lots of copies so I can make lots
> >of money" or words to that effect.
> >
> It'd take a real fool to sue Weird Al. Especially in what is quite obviously
> parody, which *is* protected.
Wouldn't it be kinda hard for Coolio to sue, since Coolio's song was
a cover of a Stevie Wonder song? It sounds like Coolio was objecting
on behalf of Stevie Wonder.
Robert.Whelan
On Sat, 3 Mar 2001, Terry Austin wrote:
> Mark Atwood <m...@pobox.com> wrote:
>
> >Terry Austin <tau...@hyperbooks.com> writes:
> >>
> >> And, in general, if he gets a "no" answer, he abandons the project. He
> >> seemed quite distraught over the misunderstanding with whatever rapper took
> >> offense at a song Yankovick though he had permission to do.
> >
> >I am given to understand that more likely what happened was that said
> >rapper decided that he could get more publicity out using the "deniable
> >plausibility" of "he didn't check with the right agent" to have that
> >disagreement and throw a small tantrum at an awards ceremony.
> >
> >"Weird Al"'s verion was better written, better produced, and told a
> >more coherent story, IMO.
>
> That's true of a number of Weird Al pieces, including _The Saga Begins_.
Isn't that the truth?
William December Starr
sea...@wizvax.net said:
> As far as CHARACTERS, as far as I've ever known you cannot "copyright"
> a character, any more than you can copyright an idea. What you CAN do
> is TRADEMARK the character. Now, TRADEMARKS do have a long legal
> history and precedent requiring them to be vigorously defended. This
> is the reason that Disney comes down like a ton of bricks on anyone
> attempting to use The Mouse in any non-sanctioned way. It's also why
> they have to extend the copyright on Steamboat Willie as long as they
> can, because if their trademarked character is part of a public domain
> item, I suspect their trademark suddenly becomes SEVERELY diluted.
Digging into an old law outline left over from my law school days,
INTELLECTUAL PROPERTY by Margreth Barrett, a "Smith's Review" published
and copyright in 1991 by Emanuel Law Outlines, Inc., I find the following
in the "Copyright" section, starting on page 153. (This is slightly
reformated because I don't want to deal with multiple levels of
indentation. The text is unchanged except that the highlighting with
triple asterisks is mine, and except for any typos or errors I may have
introduced.)
-------- [ *begin* ] -------------------------------------------------
G. _Other problem areas_: A couple of additional problems regarding
copyrightability of particular types of subject matter deserve mention.
They are: (1) copyright for fictitious characters and (2) copyright for
immoral or obscene works.
G.1. _Copyright for fictitious characters_: An area of considerable
debate over the years has been the extent of copyright protection for
fictitious characters, apart from the original works in which they
appeared. (In other words, is it an infringement for Y to use a
character created in X's novel, if Y's work as a whole is not
substantially similar to X's novel?) ***The prevailing rule is that a
character is entitled to separate copyright protection if the character
was distinctly delineated in the plaintiff's work and the delineation
was copied in the defendant's work.***
G.1.a. _Distinct Delineation_: Courts have differed somewhat over the
years concerning just how distinctly the plaintiff's character must be
drawn before he will have separate copyright protection apart from the
work in which he was created. In the case of characters created
strictly by word, e.g., in a novel or poem, the Ninth Circuit has
indicated that the character must be extremely well delineated, to the
point that he constitutes the story being told, rather than merely being
a vehicle for telling the story. Judge Learned Hand, in _Nichols
v. Universal Pictures Corp._, 45 F.2d 119 (2d Cir. 1930) took a slightly
less rigid view, suggesting that the character must be more than just a
"type" (for example, a "Falstaff" type -- a drunken buffoon) and must be
drawn in considerable detail. The defendant, to infringe, must copy
that detail.
G.1.b. _The cartoon cases_: When the character at issue has a visual
aspect, as well as personality characteristics described by word and
story line (for example, cartoon characters), courts have been more
willing to find copyright protection. The visual image, combined with
conceptual qualities, gives the court something more concrete and
detailed to work with, and more comfort that the character constitutes
"expression" and not "idea."
_Example_: In _Anderson v. Stallone_, 11 U.S.P.Q. 2d 1161
(C.D. Cal. 1989), Anderson wrote a 31-page "treatment" called "Rocky
IV," which he hoped to sell to Sylvester Stallone to be made into a
sequel to the movie Rocky III. The treatment used the main characters
from the earlier three Rocky movies: Rocky Balboa, Adrian, Apollo Creed,
Clubber Lang, and Paulie, but had a different story line. The court
found that Anderson's treatment, by taking the characters, infringed
Stallone's copyright protection in those characters. The court found
that the characters were protected under both the standard for
characters with visual aspects and the stricter "words only" standard.
The court commented "The Rocky characters are one of the most highly
delineated group of characters in modern American cinema. The physical
and emotional characteristics of Rocky Balboa and the other characters
were set forth in tremendous detail in the three Rocky movies before
Anderson appropriated the characters for his treatment. The
interrelationships and development of [these characters] are central to
all three movies. Rocky Balboa is such a highly delineated character
that his name is the title of all four of the Rocky movies and his
character has become identified with special character traits from his
speaking mannerisms to his physical characteristics. This court has no
difficulty ruling as a matter of law that the Rocky characters are
delineated so extensively that they are protected from bodily
appropriation when taken as a group and transposed into a sequel by
another author."
_Note_: Even when copyright is not available for characters, they may be
protected as trademarks or service marks.
-------- [ *end* ] ---------------------------------------------------
And, a bit later, on page 158, looking at the slightly different, but
related, question of what copyright protection is afforded to derivative
works:
-------- [ *begin* ] -------------------------------------------------
I. _Derivative works_: Sec. 103 of [the U.S. Copyright Act of 1976] also
provides that derivative works are within the subject matter of
copyright, but as in the case with compilations, protection extends only
to the original material contributed by the derivative author, not to
the preexisting material that he has employed in the derivative work.
(Likewise, as in the case of compilations, copyright does not extend to
a derivative work in which preexisting material has been used
unlawfully. ***The derivative work must be based on an original work
that is in the public domain or, if the original is copyrighted, the
derivative author must obtain a license from the owner or demonstrate
that her use was "fair use."***)
-------- [ *end* ] ---------------------------------------------------
So... unless things have changed a lot since 1991, characters _can_ be
copyrighted -- are, in fact, _automatically_ copyrighted, assuming they
pass the "distinctly delineated" test -- completely separate of whether
they constitute trademarks or service marks.
-- William December Starr <wds...@panix.com>
Jordan S. Bassior
>I _have_ heard a filk song based on her St. Germain stories, performed live,
>not recorded. The parody defense does not cover it, as it is not a parody.
>"derivative work" would be a better description. If she went to the mat
>over the fanzine story as you say, I would think she would have done the
>same to prevent this filk from being recorded and distributed.
Ok, that might make sense -- because you do have the right to control
derivative works. Incidentally, how extensive is this right when the derivative
works are being distributed not for profit? I do know that authors can forbid
the _public_ distribution (though obviously not the _private_ distribution) of
derivative works.
Sea Wasp
(large snippage of law)
>
> So... unless things have changed a lot since 1991, characters _can_ be
> copyrighted -- are, in fact, _automatically_ copyrighted, assuming they
> pass the "distinctly delineated" test -- completely separate of whether
> they constitute trademarks or service marks.
Thanks, William.
Now, that IS ten years agone, and there may well have been changes,
but that's an interesting point of law if it still holds. However, if
the other points of copyright still hold, it's not necessary for you
to attack anyone misusing the character simply for the purpose of
retaining your copyright -- it's still yours. If of course you feel
that the misuse is too offensive to tolerate or is/will be causing you
some financial harm, then it's obviously something you should act on.
Matt Ruff / Lisa Gold
>
> Whether a character can in fact be intellectual property,
> whether it can be copyrighted, is still being argued out in
> the courts here and there,
Really? With the exceptions of parody and criticism, I would think this
is one of the more settled questions of copyright law -- unauthorized
"derivative" works are verbotten.
-- M. Ruff
Matt Ruff / Lisa Gold
>
> Even if copyright *were* a sue-for-it-or-lose-it proposition,
> however, I'd have a problem with any author who demands books
> be burned in order to suppress an original work of fiction by
> someone else.
Well, the whole idea in copyright-infringement cases is that it's *not*
an original work. And the purpose in seizing and destroying copies of
the infringing work is not to suppress original thought but to protect
the integrity of the infringed work.
> Even if that work uses one of the author's
> characters, and even if the author feels justifiable annoyance
> about the way in which it was done, that's beyond the pale.
Well no, it's enforcement of the law. You could just as well say that
taking people's money at gunpoint is beyond the pale, but legally
assessed fines are a special case.
-- M. Ruff
Jeanne A. E. DeVoto
<Storyt...@worldnet.att.net> wrote:
>"Jeanne A. E. DeVoto" wrote:
>> Even if copyright *were* a sue-for-it-or-lose-it proposition,
>> however, I'd have a problem with any author who demands books
>> be burned in order to suppress an original work of fiction by
>> someone else.
>
>Well, the whole idea in copyright-infringement cases is that it's *not*
>an original work.
This wasn't a straight copyright-infringement case, though, as I
understand it. (If it were, there'd be no need nor desire to suppress
the work - the infringement would be settled via payment of a royalty +
penalties to the author, most likely, absent really bizarre
circumstances. And even if the pirate edition *were* destroyed, the
work itself would still exist.)
>And the purpose in seizing and destroying copies of
>the infringing work is not to suppress original thought but to protect
>the integrity of the infringed work.
I question whether that's the purpose of burning the books, though I
suppose in one interpretation it might be. However, whatever the
abstract purpose is, the unavoidable effect of burning all copies of
the work is to suppress it, and since there are other ways of
protecting the integrity of the infringed work (if indeed it needs
protecting from fan fiction, something I find doubtful) , I don't think
appealing to teleology saves the action from judgment of its result.
>> Even if that work uses one of the author's
>> characters, and even if the author feels justifiable annoyance
>> about the way in which it was done, that's beyond the pale.
>
>Well no, it's enforcement of the law.
What have the two to do with each other? Yes, it's the law that a work
that's adjudged to be derivative of a copyrighted work can be destroyed
at the instigation of the offended copyright holder. Yes, Yarbro was
within her legal rights as the story has been told here. No, I don't
find doing it acceptable even if the law allows it.
To tell you the truth, though, bookburning disgusts me so much at so
visceral a level that I don't even care whether the bookburner could be
said to be morally in the right. Destroying all trace of someone else's
work, instead of finding some other way of dealing with the offense and
addressing one's concerns, is an abominable act. The fact that
copyright law holds it out as a reasonable solution to the problem of
derivative works makes a better argument for rethinking the legal
treatment of derivative works than for accepting such actions as having
nothing wrong with them.
Terry Austin
>Paul Ciszek said:
>
>>I _have_ heard a filk song based on her St. Germain stories, performed live,
>>not recorded. The parody defense does not cover it, as it is not a parody.
>>"derivative work" would be a better description. If she went to the mat
>>over the fanzine story as you say, I would think she would have done the
>>same to prevent this filk from being recorded and distributed.
>
>Ok, that might make sense -- because you do have the right to control
>derivative works. Incidentally, how extensive is this right when the derivative
>works are being distributed not for profit? I do know that authors can forbid
>the _public_ distribution (though obviously not the _private_ distribution) of
>derivative works.
>
Commercial purpose changes almost nothing. Infringement is infringement,
regardless of purpose. The major differences for infringement for commercial
purpose are that 1) damages that can be recovered are more, and 2) in
theory, it is a criminal offense rather than (or in addition to) being a
civil offense, though prosecutions are very rare.
Terry Austin
>William December Starr wrote:
>
> (large snippage of law)
>
>>
>> So... unless things have changed a lot since 1991, characters _can_ be
>> copyrighted -- are, in fact, _automatically_ copyrighted, assuming they
>> pass the "distinctly delineated" test -- completely separate of whether
>> they constitute trademarks or service marks.
>
> Thanks, William.
>
> Now, that IS ten years agone, and there may well have been changes,
>but that's an interesting point of law if it still holds.
Keep in mind, copyright law changes have universally been to give copyright
holders *more* rights, not less, in recent years (and for decades, in fact).
>However, if
>the other points of copyright still hold, it's not necessary for you
>to attack anyone misusing the character simply for the purpose of
>retaining your copyright -- it's still yours. If of course you feel
>that the misuse is too offensive to tolerate or is/will be causing you
>some financial harm, then it's obviously something you should act on.
There's a couple of points there:
1) It does not matter if the author _needs_ to defend their copyright. It is
sufficient that the law give them the right to do so. Whether you agree with
their reasoning for doing so or not, it is still their right.
2) Marion Zimmer Bradley. And you should know what I'm talking about, you
were here the last time this came up.
Terry Austin
It sounds to me like Coolio was objecting on behalf of Coolio's bank
account, which he thought would benefit from playing "tough guy" to the long
haired hippie freak. It's heartening that it didn't work.
Terry Austin
>...there are other ways of
>protecting the integrity of the infringed work (if indeed it needs
>protecting from fan fiction, something I find doubtful)
I suspect that Marion Zimmer Bradley would disagree with you on that. With
at least some credibility.
lal_truckee
Maybe the successfull argument was "You can't parody a parody?"
Matt Ruff / Lisa Gold
>
>
>>"Jeanne A. E. DeVoto" wrote:
>>
>>> Even if copyright *were* a sue-for-it-or-lose-it proposition,
>>> however, I'd have a problem with any author who demands books
>>> be burned in order to suppress an original work of fiction by
>>> someone else.
>>
>> Well, the whole idea in copyright-infringement cases is that
>> it's *not* an original work.
>
> This wasn't a straight copyright-infringement case, though,
> as I understand it.
Yes, it was. "Infringement" covers more than just piracy -- it's any
violation of copyright, including the creation of unauthorized
derivative works.
> (If it were, there'd be no need nor desire to suppress
> the work - the infringement would be settled via payment of
> a royalty + penalties to the author, most likely, absent
> really bizarre circumstances. And even if the pirate edition
> *were* destroyed,
I pretty sure SOP in piracy cases is to seize and destroy as many copies
of the pirate edition as the cops can readily get their hands on --
obviously they're not going to go into people's houses to seize
individual copies that may already have been sold, but the unsold copies
in the warehouse are toast.
>> And the purpose in seizing and destroying copies of
>> the infringing work is not to suppress original thought but
>> to protect the integrity of the infringed work.
>
> I question whether that's the purpose of burning the books,
> though I suppose in one interpretation it might be. However,
> whatever the abstract purpose is, the unavoidable effect of
> burning all copies of the work is to suppress it,
In the case of a derivative work, of course that's true. But...
> and since there are other ways of protecting the integrity
> of the infringed work
There aren't, really. Either I have the exclusive right to authorize
derivative works of my copyrighted material, or I don't. If I do -- and
copyright law says that I do, with some exceptions -- then I have to be
able to enforce that right by suppressing unauthorized works that
violate my copyright.
> (if indeed it needs protecting from fan fiction, something I
> find doubtful),
I agree with you that fanfic is, at worst, harmless, and at best very
flattering, and I think in 99% of cases trying to suppress it by
asserting copyright would mark you as a heavy-handed prick.
Nevertheless, for copyright to mean anything you have to have the power
to defend it -- whether or not you choose to use that power is another
matter.
> I don't think appealing to teleology saves the action from
> judgment of its result.
I'm not appealing to teleology, just practicality. Laws need teeth in
order to be effective.
> To tell you the truth, though, bookburning disgusts me so
> much at so visceral a level that I don't even care whether
> the bookburner could be said to be morally in the right.
> Destroying all trace of someone else's work, instead of
> finding some other way of dealing with the offense and
> addressing one's concerns, is an abominable act.
In Yarbro's case, what alternative would you have suggested?
-- M. Ruff
Wiley20658
>someone
>from recording a filk song about her St. Germain stories by threatening to
>sue
>them over it. Now, this slightly confuses me. The way I always understood the
>copyright laws to operate, parodies are permissible. Was this a case of the
>filk songster unnecessarily wimping out, or would Ms. Yarbro have had a valid
>legal argument here?
>
>Sincerely Yours,
>Jordan
Awhile back someone asked me to ask Quinn Yarbro about copyright infringement
and the like, and Quinn later said I can use the quote if the issue came up
again. Here was a reply she wrote in January 2000:
"Discussing any character under copyright (and characters *never* go out of
copyright; so long as their is any legitimate claimant to a writer's
estate, the characters are not available for use without permission) is
fine. Reviewing is fine so long as the reviews do not contain excerpts of
more than 1,500 words. What is not fine, and is in fact a serious federal
crime is reprinting work in which that character appears, adapting the
character in other stories, or doing work in which there are six points or
more of similarity to the original work or character. Fan fiction, no
matter how well-intention, infringes copyright and writers are required
under law to stop it when they discover it, or risk losing their copyright
-- and livelihood. The test of infringement, incidentally, is not whether
or not money changes hands, but if the work is distributed." --Chelsea Quinn
Yarbro
lal_truckee
So now she's a lawyer, too? This sounds like any of thousands of other
authoritative usenet babbling. It also sounds like the someone I'm not likely to
enjoy reading.
By any chance is her vampire character in question a blood-sucking lawyer? Is
there ANY vampire character who is a "blood-sucking lawyer" out there in the
lit? If not I claim copyright on the character of the "blood-sucking lawyer."
Contact my agent for permission to use.
BTW is she paying Bram Stoker's estate for permission to use his character of a
vampire? (Assuming the answer which I know to be true.) WHY NOT? She does claim
"characters 'never' go out of copyright"
Terry Austin
"Wiley20658" <wiley...@aol.com> wrote in message
news:20010305151737...@ng-ch1.aol.com...
This is flat wrong. Copyright violation can be a criminal violation
under exactly two circumstances. From US Code, Title 17,
Section 506 (Criminal Offenses):
"Criminal Infringement. - Any person who infringes a copyright willfully
either -
"(1) for purposes of commercial advantage or private financial
gain, or
"(2) by the reproduction or distribution, including by
electronic means, during any 180-day period, of 1 or more copies
or phonorecords of 1 or more copyrighted works, which have a
total retail value of more than $1,000, shall be punished as provided
under section 2319 of title 18, United States Code. For purposes of
this subsection, evidence of reproduction or distribution of a
copyrighted work, by itself, shall not be sufficient to establish
willful infringement."
Fan fiction that isn't published for commercial purposes is
quite clearly not criminal infringement.
"Fan fiction, no
> matter how well-intention, infringes copyright and writers are required
> under law to stop it when they discover it, or risk losing their copyright
> -- and livelihood.
This is also flatly incorrect. This is true of trademarks, but manifestly
not true of copyrights. There are issues with not pursuing infringements,
but losing copyright is not among them.
>The test of infringement, incidentally, is not whether
> or not money changes hands, but if the work is distributed." --Chelsea
Quinn
> Yarbro
>
Assuming she's a writer, it's disappointing she know so
little about the law that protects her work.
Terry Austin
Terry Austin
>flattering,
Marion Zimmer Bradley and Michael J. Straczynski would both disagree, from
personal experience.
Sea Wasp
>
> Matt Ruff / Lisa Gold <Storyt...@worldnet.att.net> wrote:
> >
> >I agree with you that fanfic is, at worst, harmless, and at best very
> >flattering,
>
> Marion Zimmer Bradley and Michael J. Straczynski would both disagree, from
> personal experience.
I dunno what JMS' (yes, it's J. Michael) problem was -- haven't heard
that story -- but MZB had a more complicated problem than mere fanfic,
involving sanctioned publications for money with MZB's personal
interaction.
The fact that the fan in question was apparently a knave as well
didn't help, but if it had been JUST fanfic, and not something MZB
involved herself in, there would likely have been no problem. Much of
the difficulty comes in the fact that since MZB had contact with the
fan in question during the writing in question, it becomes legally
difficult to assert that the fan's writing had no influence on MZB.
If, on the other hand, all that MZB ever heard was "These people are
writing fanfics in Darkover", that'd be a different matter entirely.
I agree that the outcome of that whole mess was idiotic, but fanfic
by itself shouldn't be considered THAT kind of danger.
Wiley20658
>authoritative usenet babbling.
No, but Yarbro has been a published writer since the 1960s and unfortunately
has had to deal with copyright infringement more than once. Also, she has a
very good lawyer. I'm sure if you politely e-mail Yarbro from the e-mail
address listed on her website, she'll put you in touch with her lawyer and she
can answer any further questions. Yarbro also has a section on copyright
infrigement on her site, www.chelseaquinnyarbro.com.
> It also sounds like the someone I'm not likely to
>enjoy reading.
Sorry you feel that way. She's a really good writer, and doesn't just do
vampire books.
>By any chance is her vampire character in question a blood-sucking lawyer?
Nope.
>BTW is she paying Bram Stoker's estate for permission to use his character of
>a
>vampire? (Assuming the answer which I know to be true.) WHY NOT? She does
>claim
>"characters 'never' go out of copyright"
Why would Yarbro need to get the Stoker's estate's permission with her
Saint-Germain books? Dracula has nothing to do with Yarbro's Saint-Germain. If
you're referring to Yarbro's Bride of Dracula trilogy, that was a packaged
deal. The publisher asked her to write the books. Swordsmith Productions/Avon
Books must have taken care of whatever legal work was necessary for this
trilogy before they approached Yarbro. This trilogy is completely separate from
the Saint-Germain/Madelaine/Olivia books.
Wiley
Matt Ruff / Lisa Gold
>
> Matt Ruff wrote:
>>
>> I agree with you that fanfic is, at worst, harmless, and at
>> best very flattering,
>
> Marion Zimmer Bradley and Michael J. Straczynski would both
> disagree, from personal experience.
I don't know either of these stories. Details?
-- M. Ruff
Jeanne A. E. DeVoto
>>> Well, the whole idea in copyright-infringement cases is that
>>> it's *not* an original work.
>> This wasn't a straight copyright-infringement case, though,
>> as I understand it.
>Yes, it was. "Infringement" covers more than just piracy -- it's any
>violation of copyright, including the creation of unauthorized
>derivative works.
Well, OK, but the "it's *not* an original work" seemed to me to be a
suggestion that it was a case of a pirate edition of the copyright
holder's own work. Fan fiction is original work in the sense that it
contains original ideas and expression, even if parts derive from
copyright-protected expression of someone else.
>> and since there are other ways of protecting the integrity
>> of the infringed work
>
>There aren't, really. Either I have the exclusive right to authorize
>derivative works of my copyrighted material, or I don't.
I think the identity of what we're protecting is shifting in the
conversation. By "integrity of the work" I don't mean the author's
absolute right to control expression related to it - I mean something
more along the lines of preventing damage to the reputation of the
original work. There's also the author's right to share in monetary
profit from the work, which we haven't talked about but which is an
important aspect.
(Copyright doesn't actually give an absolute right to refuse even the
creation of straight copies of the copyrighted work. Fair use is one
huge exception to this. Another is compulsory licensing.)
>> To tell you the truth, though, bookburning disgusts me so
>> much at so visceral a level that I don't even care whether
>> the bookburner could be said to be morally in the right.
>> Destroying all trace of someone else's work, instead of
>> finding some other way of dealing with the offense and
>> addressing one's concerns, is an abominable act.
>
>In Yarbro's case, what alternative would you have suggested?
Well, in general for derivative works I see a couple of legitimate
interests of the author. One is the monetary right mentioned above, to
share fairly in any money generated by sale of the derivative work.
Another is the protection of the author's and the work's reputation. A
third (maybe) is the author's priority in continuing to create related
works, without having that niche snatched out from under him or her by
a derivative work by someone else.
The monetary-interest part, I have the impression was not at issue in
Yarbro's case. (In cases where it is, possibly a statutory percentage
of the profits would work.)
The reputation part might be best handled by letting the author decide
whether and how he or she is to be credited in the derived work. There
are a number of possibilities: the author might be pleased by the
derivative work and want to include a little "ad" for the original;
might not like the derivative work and want to make clear that it's not
related to the original or "authorized" in any way; might be horrified
by the derivative work and not want his or her name used anywhere near
it; or might not care. Giving the author control over the credits would
help make the relationship between the works clear to the author's
satisfaction.
I'm not sure how to handle the third part, the author's priority of
related works.
But I've just read a letter someone else posted from Yarbro, in which
she repeats the chestnut about risking loss of copyright if you don't
suppress infringing works, along with several other popular
misapprehensions about copyright. If she believes this, and if this was
her only or main reason for seeking to suppress this fanfic we're
discussing, it's possible that simply explaining the law, perhaps
suggesting her licensing the use for a nominal fee, would have resolved
the matter to her satisfaction.
Or maybe not, not being sure exactly what her objection(s) were...
Matt Ruff / Lisa Gold
>
> Awhile back someone asked me to ask Quinn Yarbro about
> copyright infringement and the like, and Quinn later said I
> can use the quote if the issue came up again. Here was a
> reply she wrote in January 2000:
>
> "Discussing any character under copyright (and characters
> *never* go out of copyright; so long as their is any
> legitimate claimant to a writer's estate, the characters are
> not available for use without permission)
Well, this part is false, or at least confused. All copyrights
eventually expire; and to use copyrighted material you need the
permission of the copyright's current owner, who is not necessarily the
original author or a claimant to the author's estate.
> Reviewing is fine so long as the reviews do not contain
> excerpts of more than 1,500 words. What is not fine, and is
> in fact a serious federal crime is reprinting work in which
> that character appears, adapting the character in other
> stories, or doing work in which there are six points or
> more of similarity to the original work or character. Fan
> fiction, no matter how well-intention, infringes copyright
> and writers are required under law to stop it when they
> discover it, or risk losing their copyright -- and livelihood.
Unless the law has changed drastically in the last couple years, this
part's wrong, too -- you can lose a trademark if you don't defend it,
but with copyright you can selectively enforce your monopoly. Turning a
blind eye to fan-fic doesn't void your copyright.
-- M. Ruff
David Eppstein
Matt Ruff / Lisa Gold <Storyt...@worldnet.att.net> wrote:
> All copyrights
> eventually expire
I understand that in 1962, congress started expanding the renewal period at
a rate of one year per year, with bigger jumps in 1976 and 1998. So since
that time, no US copyright has expired unless the owner neglected to renew.
--
David Eppstein UC Irvine Dept. of Information & Computer Science
epps...@ics.uci.edu http://www.ics.uci.edu/~eppstein/
Matt Ruff / Lisa Gold
>
> Matt Ruff wrote:
>
>> All copyrights eventually expire
>
> I understand that in 1962, congress started expanding the
> renewal period at a rate of one year per year, with bigger
> jumps in 1976 and 1998. So since that time, no US copyright
> has expired unless the owner neglected to renew.
I think all that's correct, but even now, all existing copyrights have
at least a *theoretical* expiration date -- subject to further extension
by Congress, of course.
-- M. Ruff
Samuel Paik
> I think all that's correct, but even now, all existing copyrights have
> at least a *theoretical* expiration date
Unless you are immortal...
This is an SF group, isn't it?!?
Terry Austin
"Matt Ruff / Lisa Gold" <Storyt...@worldnet.att.net> wrote in message
news:3AA46A15...@worldnet.att.net...
because a fan posted an story idea that was very similar
to the unmoderated B5 newsgroup that JMS openly
participated in. The script was in pre-production at the
time, and was shelved for a year until the fan figured out
what was going on, and offered to sign over any and
all rights to the idea at no charge. There's a brief summary
at http://www.midwinter.com/b5/Usenet/jms96-10-usenet
(by JMS). Do a search for "Bradley" and you'll go right
to it. (Ignore the stuff on MZB - it's not accurate, as
far as I can tell).
MZB apparently has a Darkover novel that will never
be published because of a similar piece of fanfic that
appeared in a sanctioned forum (Compuserve? Prodigy?
I forget, but it was sanctioned by MZB at the time,
in every account I've found). There was some kind
of dispute, in which either the fan or her husband
threatened a lawsuit, and MZB's publisher just killed
the novel forever. I haven't ever found an account
that is definitive on the subject, but it almost
certainly happened, and was caused by MZB
allowing fanfic to be published.
Terry Austin
Terry Austin
> >So now she's a lawyer, too? This sounds like any of thousands of other
> >authoritative usenet babbling.
>
> No, but Yarbro has been a published writer since the 1960s and
unfortunately
> has had to deal with copyright infringement more than once. Also, she has
a
> very good lawyer. I'm sure if you politely e-mail Yarbro from the e-mail
> address listed on her website, she'll put you in touch with her lawyer and
she
> can answer any further questions. Yarbro also has a section on copyright
> infrigement on her site, www.chelseaquinnyarbro.com.
The only thing I see is the copyright notice on the site itself,
and it, too, is simply incorrect. In several ways.
Terry Austin