HIGHLA-L Digest - 26 Jul 2001 - Special issue (#2001-221)
Automatic digest processor (LISTSERV@LISTS.PSU.EDU)
Thu, 26 Jul 2001 14:00:18 -0400
There are 18 messages totalling 868 lines in this issue.
Topics in this special issue:
1. bootleg tapes & more (11)
2. Alphabetti Spaghetti (2)
3. New Highlander DVD (2)
4. copyrighting characters (was bootleg tapes & more) (3)
----------------------------------------------------------------------
Date: Thu, 26 Jul 2001 13:53:19 +0100
From: "John Mosby (B)" <a.j.mosby@btinternet.com>
Subject: Re: bootleg tapes & more
Carmel
Only thing I would point out (before Nina does), is that I don't think that
an article about a copyrighted subject is the same thing as a work of
fiction based on one. Unless there's huge amounts of text copied, I think a
work of any length which makes comment on another comes under the 'fair
use/comment' law. That's why I could write an Unauthorised Episode Guide to
Highlander (based on the series copyrighted/trademarked by Davis Panzer)
and have it published perfectly legally, so long as copyrighted material
such as logos and photos aren't included without permission. Interestingly,
the 'guide book' is a situation where you COULD (if so inclined) argue a
moral case not to write such an UNAUTHORISED work , but I would be utterly
entitled to without fear of legal prosecution) Interesting. I hadn't thought
about that before. It raises a side-road this discussion has yet to tackle.
I'd genuinely like to hear what the List and Nina in particular feel in
relation to that prospect as it falls between the two camps of opinion/legal
thoughts at the moment
I know that wasn't the main point you were making and, yes, I would agree
that writing about something factually can be just as rewarding/ hard work /
time and energy consuming as writing new fiction. I certainly wouldn't
dispute that many fanfic writers put in just as much time and effort as I
would for an article or feature and this demonstrates just as much passion
for Highlander as I do.
John
Energizer Punny.
PS) Spawn of Satan???? Dang, you never told me you were a Spice Girl.
------------------------------
Date: Thu, 26 Jul 2001 23:48:57 +1000
From: Carmel Macpherson <Carmel@stuartfieldhouse.com>
Subject: Re: bootleg tapes & more
HI all
John said: <<..Only thing I would point out (before Nina does), is that I
don't think that
an article about a copyrighted subject is the same thing as a work of
fiction based on one. Unless there's huge amounts of text copied, I think a
work of any length which makes comment on another comes under the 'fair
use/comment' law. ...>>
Yep - I know - I have no problem with that at all and never thought of her
commentaries as infringing copyright. I was more interested in the seeming
hypocrisy whereby fanfic writers are castigated for expending so much energy
on writing about another's creation. That is what doesn't make sense to me
in Nina expending so much energy writing about Highlander in the episode
commentaries when by her own terms she could be using all that energy
writing about something original??
Thus, it isn't a copyright issue for me. It's one to do with seeming
hypocrisy.
She also has made a lot of fanfic writers (and any infringers of copyright)
benefiting in any way off the original creative work of others - which is
why I'd like to know where she draws the line on this? Where does hypocrisy
stop and start?
I could at least understand Nina's argument when it was simply about
copyright. What I don't understand is the outrage about wasting energy
stealing the original work of the creators of the Highlander universe. I
could understand the outrage if it was solely about fanfic writers in some
way taking money off D-P. They don't. But there are other people who can
*legally* make money off Highlander and D-P, by, for example, getting paid
to write an article or episode reviews.
***Note that I am not at all saying that there is anything in the slightest
wrong with this - legally or ethically.****
I'm saying that I can't reconcile the moral outrage on Nina's part which
seems to be prejudiced towards fanfic and fanfic writers alone???
Why is it that Fanfic writers waste their time and energy by writing fanfic
based on Highlander but professional writers (journalists/essayists) and
published novelists do not waste their time or energy? The Highlander novels
no doubt had a particular % of profits going to D-P - but are the authors to
be condemned because they are not spending their time writing something
original?? What of Script writers???
Let me see if I can summarise:
*IF* we should:
1. expend our energy on creating only original works
2. never seek to deflect $$ from the originators of the original work
then this should surely apply equally to all - not just fanfic writers. The
fact that certain *users* of the creative ideas of D-P have a legal right to
use the material is not relevant, in the context of the argument that Nina
has put.
Kind regards
Carmel (mind you, I think that it would make for a very very boring world -
but that's just me).
------------------------------
Date: Thu, 26 Jul 2001 16:22:12 +0200
From: Marina Bailey <fdd-tmar@netactive.co.za>
Subject: Re: Alphabetti Spaghetti
John wrote:
>What happens if C, D, E, F and G want to talk about X, Y and Z?
This reminds me of that scene in "Good Morning, Vietnam":
"If the VP is such a VIP, then we'd better put the PC on the
QT, because it it leaks to be VC he could end up an MIA and
then we'd all be put on KP."
I like how we've gone from talking about people to not using
names. Luckily, most of us can figure out who has been
referred to.
- Marina.
\\ "You've heard it said that living well is ||>>>>>>>>>>>>>>> //
// the best revenge? Au contraire - living || R I C H I E >> \\
\\ forever is the best revenge." - LaCroix ||>>>>>>>>>>>>>>> //
//===Marina Bailey==fdd-tmar@netactive.co.za===|| \\
\\============Chief Flag Waver and Defender of Richie=============//
"Until I was 15 I thought my mother sewed my name in my clothes. I
thought my name was Woolworths."
------------------------------
Date: Thu, 26 Jul 2001 16:22:14 +0200
From: Marina Bailey <fdd-tmar@netactive.co.za>
Subject: Re: bootleg tapes & more
Carmel wrote:
>p.p.s. What I always hated about Mako was precisely this black and white
>approach to the law. Was justice done in any way, shape or form by the
>deaths of the young boy in the flashback (Tim Ramsay) or Laura in the
>present?
Since they broke the 'law' (obviously not as serious as violating
copyright for characters that don't even exist), I'm sure Nina will
totally agree that they should have died. I bet there were even
sounds of applause.
I personally applauded when Richie whacked Mako, but each to their
own.
(Well, I confess.) (The applause was really only because Richie
got to whack *someone*.) (He was due.)
- Marina.
\\ "You've heard it said that living well is ||>>>>>>>>>>>>>>> //
// the best revenge? Au contraire - living || R I C H I E >> \\
\\ forever is the best revenge." - LaCroix ||>>>>>>>>>>>>>>> //
//===Marina Bailey==fdd-tmar@netactive.co.za===|| \\
\\============Chief Flag Waver and Defender of Richie=============//
"Until I was 15 I thought my mother sewed my name in my clothes. I
thought my name was Woolworths."
------------------------------
Date: Thu, 26 Jul 2001 07:51:53 -0700
From: Lynn <lloschin@sprynet.com>
Subject: Re: bootleg tapes & more
I said:
>>TPTB upset about fanfic? Feeling stolen from, creatively raped and
morally outraged? I suppose it's possible, but I see no evidence
that's actually the case, in media fandom anyway. >>
Nina:
<<..Well, too bad Reunion disallows questions about fanfic, so people
> can't ask & find out what HL's PTB really think. So, I guess you &
I will both just
> continue to speculate...>>
When you run a convention, you're certainly welcome to tailor whatever
guidelines you see fit, based on your many years of experience as a
convention staff member and attendee. If you choose to allow
questions you know will be unwelcome by some of the guests to satisfy
your own curiousity... well, you can certainly go ahead and do that,
if you want.
And I don't need to speculate a bit. I can't believe that if HL's
producers felt stolen from, creatively raped and/or morally outraged
that they would invite fans to post fanfic on their official web site.
Lynn
------------------------------
Date: Thu, 26 Jul 2001 22:51:55 +0800
From: Gerry Alanguilan <gerry@alanguilan.com>
Subject: New Highlander DVD
It looks like Anchor Bay is going to be releasing Highlander once again...
From their site...
http://www.anchorbayentertainment.com/future/
Highlander - (THX, cc) Early/Mid 2002
Highlander: Limited Edition Early/Mid 2002
http://www.widescreenreview.com/moviefind/anch060101.html
The new release is said to have a new DTS ES 6.1 audio track. It's too
early tell what other features it will have, but I hope they really do work
on the picture itself. The print they used on the Director's Cut isn't
really very good.
At any rate, whatever they come up with, I'm very excited to see what it is...
Gerry
------------------------------
Date: Thu, 26 Jul 2001 07:57:08 -0700
From: Lynn <lloschin@sprynet.com>
Subject: Re: bootleg tapes & more
Bridget:
> > And ultimately, when the HL TPTB's copyrights on all this stuff
> > expire, anyone that wants to will be able to write in the universe
> > that TPTB created (really, that Greg Widen created and TPTB sort
of
> > expanded on ... or messed up, depending upon one's point of view).
> > So copyright is not a matter so much of morality, but one of time.
> > In 2060, all HL fanfic will be completely legitimate and one will
> > even be able to legally sell it and make money from it.
> > (1985+75=2060).
John:
> Actually, I'm guessing that's wrong. Will one of the lawyer-types
confirm
> that it's perfectly possible to extend a copyright if the said item
is in
> constant or regualr use and any time-frame might well only start
after a
> date the copyrighted item was last used? So, so far, it would be at
least
> 2076 before this would kick-in, probably much later as videos,
merchandise
> and announced future product are still active?
No, it doesn't work that way. The original film's copyright starts
running on the date of publication. The Gathering's starts in 1993.
To Be/Not to Be starts in 1998 (97?) Endgame in 2000, etc. Then if
they want they can argue if something created in the interim is really
a derivative work of the original movie, a series epiosde, Endgame,
whatever.
If what you said is correct than all Disney would have to do to keep
the copyright in "Steamboat Willie" (which would now be out of
copyright if it hadn't been extended to 75 years) is to make a 5
minute sequel to it every 75 years, which has the potential to make
copyright perpetual, which is unconstitutional under U.S. law.
Copyrights (and patents) can only be "for a limited time."
Lynn
------------------------------
Date: Thu, 26 Jul 2001 10:13:17 -0400
From: Gerry Alanguilan <timawa@laguna.net>
Subject: New Highlander DVD
It looks like Anchor Bay is going to be releasing Highlander once again...
From their site...
http://www.anchorbayentertainment.com/future/
Highlander - (THX, cc) Early/Mid 2002
Highlander: Limited Edition Early/Mid 2002
http://www.widescreenreview.com/moviefind/anch060101.html
The new release is said to have a new DTS ES 6.1 audio track. It's too
early tell what other features it will have, but I hope they really do work
on the picture itself. The print they used on the Director's Cut isn't
really very good.
At any rate, whatever they come up with, I'm very excited to see what it is...
Gerry
------------------------------
Date: Thu, 26 Jul 2001 11:44:49 -0400
From: jjswbt@earthlink.net
Subject: Re: bootleg tapes & more
<< So..how does A know he has been insulted? He doesn't - unless he 1)
>really *is* reading B or 2) sees the comment repeated or referred to in C's
>post, or 3) someone sends it to A privately. >>
Annie:
>Er, perhaps because other people are quoting the message? Perhaps that's
>the same reason why "A" might respond to something in a continuing discussion
>that was originally brought up by "B"? Because it comes up in the
>discussion from another source.
So...when you were reading the three choices I gave above...did you totally skip #2? I know it was kind of complicated..I used letters and numbers mixed together but I thought #2 was pretty clear .It says that A (that would be you) sees B's comments (that would be Nina's) repeated or referred to by C (that would be Lynn, John, Leah, me, anyone else).
And yes..that is what happens all the time. It's what makes ignoring someone so very hard. Comments get picked up and repeated. ..which brings me to the only point I was trying to make...that killfiles are pretty damn useless.
Leah made a point of telling Carmel ( I think) on-list that the best thing to do with Nina was to killfile her.
My question is and was - what good does it do to killfile someone if you continue to respond to what the killfiled person says? Because...*of course* you still see what they wrote for the very reason you mention - other people repeat the comments. Killfiling Nina may give you some personal satisfaction ("Take that!" ) but it doesn't solve your problem..you still end up reading everything Nina writes and you still end up responding.( And you certainly have a right to answer Nina..anytime anywhere.)
What interests me (slightly) is..what was the point of mentioning that you (or Leah) killfile Nina? It can only be to somehow indicate that you have taken yourself out of, or above, the fray. It's saying "I am ignoring Nina with dignity". Which is great...except that you *aren't* ignoring Nina with dignity. And you don't have to - let me repeat..you are, as always, welcome to answer her or anyone else. But...don't hold up the killfile as some kind of fix-it-all.
You have no moral obligation to ignore Nina or her comments...whether you killfile her or not. I don't remember suggesting you did. What I proposed what there are only so many ways that a killfile will actually work (if by working we mean you actually don't have to deal with Nina) Privately killfiling Nina and then responding to everything she says is a waste of a killfile..publicly *saying* that you killfile Nina and then responding to everything she writes is silly.
Read what Nina writes. Don't read what Nina writes. Answer Nina. Don't answer Nina. But.don't proclaim that you've killfiled her and then go right on as if you hadn't. It looks hypocritical.
Leah:
>Why are you changing the issue from the conduct of "B" to the conduct of
>"A"? Again, the answer is self-evident. You want "A" to be the one who exhibits
>exemplary, passive behavior while "B" does whatever the hell "B" has a mind
>to do, without consequence. When "A" has responded to "B" in over a year, I
>think it's been more than proven who has a modicum of good control and
>maturity in the interests of this list. Period. End of story.
Nope. You got that totally wrong. I don't care if you *or* Nina exhibit exemplary behavior. You can claw each others cyber-eyes out if you like.
The issue was..as I repeated above..killfiles. You can't change Nina's behavior..you can only change your own (Not that you have to). You don't have to respond to Nina if you don't want ..you can if you do. But saying that she is killfiled and then going on with the fight doesn't make sense. It's an attempt to gain the moral high ground when there isn't any.
>And it also completely ignores the third option, which is that a list
>administrator....administrates against an ongoing attempt to disrupt.
And again I ask...are you saying that Debbie likes Nina better than she likes you? Debbie hasn't sanctioned Nina..I must suppose that means Debbie either feels that Nina's comments are within the bounds she has set for the past 7 years.or she feels that you are capable of returning Nina's comments in kind and are not in need of protection. If you don't like the way Debbie is running her List..I suggest you take it up with Debbie.
Me:
>>If you don't like Nina..fight with her or ignore her. Edit out her
>potions of posts and respond to what is said by the remaining participants.
>Ignoring someone can be very effective..but one has to *really* ignore them.<<
Leah:
>Once again, you feel the only person who doesn't have to mind is Nina.
>Everyone else needs to accommodate her and behave civilly, but she is
>exempt, is that it? I see. And yes, most others do, too.
I'm saying (not that you're listening anymore) that Nina is who she is. You are who you are. I am who I am. Etc, etc, etc. Nina is not exempt from List rules...but as you may have noticed..*Debbie* doesn't apparently think Nina has gone too far and it is only *Debbie's* opinion who matters. When Debbie thinks Nina has stepped out of bounds, she will act. Until then..all you (all any of us) can do is answer or not answer as we chose. You can remain civil and thereby perhaps look "good" when compared to Nina, you can return fire in the same style as Nina...you can write to Debbie and complain..whatever you want.
Leah:
>And once more, I will be
>the reasonable one and end this boring, off-topic. Go on and enjoy the last
>word.
:::pictures Leah turning and flouncing away::::::
Wendy(I guess she told *me*! <EFG>)
Fairy Killer
jjswbt@earthlink.net
http://home.earthlink.net/~jjswbt/index.html
------------------------------
Date: Thu, 26 Jul 2001 15:50:49 +0000
From: Judy Ruiz <macaruin@hotmail.com>
Subject: Re: bootleg tapes & more
-*Disclaimer*
And for the record, any spare ferrets even think of buffing MY
flagpole...and they'll be turned into fanfic book covers,
pronto.
Humanely, natch.
John
*
Snicker. Flagpole polishing is verboten? Or do you just have a thing
against ferrets?
MacaruinMcTrollwench
http://www.geocities.com/ruiz4js/index.html
PEACE-APFC
Since light travels faster than sound, isn't that why some people appear
bright until you hear them speak?
_________________________________________________________________
Get your FREE download of MSN Explorer at http://explorer.msn.com/intl.asp
------------------------------
Date: Thu, 26 Jul 2001 11:00:07 -0500
From: Bridget Mintz Testa <btesta@firstworld.net>
Subject: Re: bootleg tapes & more
Carmel wrote:
>
>I could at least understand Nina's argument when it was simply about
>copyright. What I don't understand is the outrage about wasting energy
>stealing the original work of the creators of the Highlander universe. I
>could understand the outrage if it was solely about fanfic writers in some
>way taking money off D-P. They don't. But there are other people who can
>*legally* make money off Highlander and D-P, by, for example, getting paid
>to write an article or episode reviews.
And there are plenty of people who make money by interviewing anyone
associated with the series or the movies and then writing articles
about the interviews for magazines such as People or Us. As I said
in my last post, and as I think Carmel's statements here agree, the
whole issue of getting into someone else's universe to do new things
to it isn't all that crisp. I mentioned interactive games,
collaborative universe stories such as the "Thieves' World" books in
science fiction. I've heard there are even interactive novels,
although I personally haven't seen them. These all invite the
reader/player to bring their own creativity and ideas into the
original writer/game designer's universe. There have even been TV
shows where the ending is dependent upon viewers' votes--although of
course such a situation is usually limited to one of two endings, it
still involves the viewers. Perhaps that's getting a bit distant
from my original point, but I can easily see television series and
movies getting more and more interactive all the time, especially as
Web technology advances. Perhaps the day may even come when fans can
actually participate in the creation of a work and influence it.
(Maybe
I wrote:
>> And ultimately, when the HL TPTB's copyrights on all this stuff
>> expire, anyone that wants to will be able to write in the universe
>> that TPTB created (really, that Greg Widen created and TPTB sort of
>> expanded on ... or messed up, depending upon one's point of view).
>> So copyright is not a matter so much of morality, but one of time.
>> In 2060, all HL fanfic will be completely legitimate and one will
>> even be able to legally sell it and make money from it.
>> (1985+75=2060).
>
>> Bridget Mintz Testa
>
And then John Mosby wrote:
>Actually, I'm guessing that's wrong. Will one of the lawyer-types confirm
>that it's perfectly possible to extend a copyright if the said item is in
>constant or regualr use and any time-frame might well only start after a
>date the copyrighted item was last used? So, so far, it would be at least
>2076 before this would kick-in, probably much later as videos, merchandise
>and announced future product are still active?
>
>John
>Hoping that copyright is always a product of morality, NOT of time anyway.
>:)
It could certainly be that I have the expiration time wrong--I do get
fuzzy on the details. But whether it's 50 years or 75 or whatever
and whether or not those time periods can be somehow extended,
copyright does expire, eventually, just as patents do. And then
anyone can make use of it. Expired patents are the reasons we have
generic drugs. Expired copyrights are the reason that anybody today
could write a play based on Mark Twain or Bret Harte's works.
John, from some sidebar comments you've made, I get the idea that you
are in the UK, and copyright laws are different in the US and Europe
(and may well vary throughout Europe, too--I don't know). There are
some real benefits to European copyright law that US writers *don't*
have and one of those is something called (if I remember correctly) a
"moral" right to the work. I seem to recall, from some interesting
copyright discussions held on some of the writers' groups I belong
to, that European writers retain this "moral" right, and it could be
that it never expires. There is no such thing in US law--if a writer
sells all rights to his or her work, they have no say-so in what
happens to it afterwards. That's why the original creator of
"Superman," who, the story goes, got $50 for all his rights to the
story, got sick whenever he saw the multi-million-grossing movies and
the tremendous success of the comic books. All he ever got was $50,
and that's all he'll ever get -- and that's a modern moral tale on
the risks of selling all rights (which it's getting harder and harder
not to do, since modern publishers' contracts not only ask for all
rights in all existing media, but in any media
yet-to-be-invented--and when they lose those rights, they get
downright nasty, as witness the recent case of Tasini vs. the New
York Times).
Bridget Mintz Testa
--
Bridget Mintz Testa
btesta@firstworld.net
------------------------------
Date: Thu, 26 Jul 2001 11:12:53 -0500
From: Bridget Mintz Testa <btesta@firstworld.net>
Subject: Re: bootleg tapes & more
Explaining the ins and outs of copyright and its expiration, Lynn said:
>No, it doesn't work that way. The original film's copyright starts
>running on the date of publication. The Gathering's starts in 1993.
>To Be/Not to Be starts in 1998 (97?) Endgame in 2000, etc. Then if
>they want they can argue if something created in the interim is really
>a derivative work of the original movie, a series epiosde, Endgame,
>whatever.
Referring to John Mosby's feeling that copyright didn't expire, Lynn wrote:
>If what you said is correct than all Disney would have to do to keep
>the copyright in "Steamboat Willie" (which would now be out of
>copyright if it hadn't been extended to 75 years) is to make a 5
>minute sequel to it every 75 years, which has the potential to make
>copyright perpetual, which is unconstitutional under U.S. law.
>Copyrights (and patents) can only be "for a limited time."
Thanks for the clarifications and definitions, Lynn! Julie Beamer
previously corrected my confusion about losing copyright vs. losing
trademarks, and it got me to wondering if failure to prosecute
copyright infringement has any detrimental effect on the
copyright-holder at all. Can either of you respond to that--such
that if TPTB fail, over a period of years, to do anything about
fanfic, would that in any way harm their ability to prosecute a
fanfic writer for copyright infringement at some later point in time?
If the fanfic writer could show that TPTB had tacitly allowed fanfic
to be written for a long time, and thus tacitly allowed the
infringement, would that have any bearing in a real case?
Also, regarding the HL franchise, since "Highlander" came out in
1985, doesn't the original copyright start from there? Or is each
individual media event--movie, series, series episode, etc.,
individually covered by copyright?
Thanks again to Julie and Lynn for the clarifications and
definitions--they help make the discussion much better!
Bridget Mintz Testa
--
Bridget Mintz Testa
btesta@firstworld.net
------------------------------
Date: Thu, 26 Jul 2001 17:15:18 +0100
From: Jette Goldie <jette@blueyonder.co.uk>
Subject: Re: Alphabetti Spaghetti
> Okay.
>
> I'm lost.
>
> What happens if C, D, E, F and G want to talk about X, Y and Z?
>
> And is it O.K. if U.R. able to write write about someone as long as Ps and
> Qs are minded?
>
> U R all YY for me.
>
> John
> -talking out of his Rs.
I got lost ages ago - I'm just skimming and replying to things that
REALLY attract my attention now.
And I really don't feel like fighting with a pit-bull - they are rather
tenacious <g>
Jette
Glory may be fleeting, but obscurity is forever!
bosslady@scotlandmail.com
http://www.jette.pwp.blueyonder.co.uk/fanfic.html
------------------------------
Date: Thu, 26 Jul 2001 17:50:04 +0100
From: "John Mosby (B)" <a.j.mosby@btinternet.com>
Subject: Re: bootleg tapes & more
Polished flagpoles are wonderful if used under certain kinds of diplomatic
relations.
However, I prefer to have no thing against ferrets.
:)
John
who thinks that if Macaruination isn't a word, it should be
----- Original Message -----
From: "Judy Ruiz" <macaruin@hotmail.com>
To: <HIGHLA-L@LISTS.PSU.EDU>
Sent: Thursday, July 26, 2001 4:50 PM
Subject: Re: [HL] bootleg tapes & more
> -*Disclaimer*
> And for the record, any spare ferrets even think of buffing MY
> flagpole...and they'll be turned into fanfic book covers,
> pronto.
>
> Humanely, natch.
>
> John
>
> *
>
> Snicker. Flagpole polishing is verboten? Or do you just have a thing
> against ferrets?
>
> MacaruinMcTrollwench
> http://www.geocities.com/ruiz4js/index.html
> PEACE-APFC
>
> Since light travels faster than sound, isn't that why some people appear
> bright until you hear them speak?
>
>
> _________________________________________________________________
> Get your FREE download of MSN Explorer at http://explorer.msn.com/intl.asp
------------------------------
Date: Thu, 26 Jul 2001 12:14:48 -0500
From: Bridget Mintz Testa <btesta@firstworld.net>
Subject: copyrighting characters (was bootleg tapes & more)
Actually, I have another question for Lynn and/or Julie regarding
copyright. I know that you can copyright cartoon/comic characters
like Superman, Donald Duck, and the like, but are characters created
for television shows, movies, etc., in the same category? Are Connor
MacLeod, Duncan MacLeod, Amanda, Richie, et al, copyrighted? I've
read that copyright for a work means, in the case of a book,
copyrighting the specific arrangement of words in that book, and I
would assume that for a movie, it's copyrighting the actual released
movie (in whatever various formats in which it's released). But are
the characters themselves copyrighted?
Thanks in advance for clarification on this.
Bridget Mintz Testa
--
Bridget Mintz Testa
btesta@firstworld.net
------------------------------
Date: Thu, 26 Jul 2001 10:24:44 -0700
From: Lynn <lloschin@sprynet.com>
Subject: Re: bootleg tapes & more
Bridget wrote:
>Can either of you respond to that--such
>that if TPTB fail, over a period of years, to do anything >about
fanfic, would that in any way harm their ability to >prosecute
a fanfic writer for copyright infringement at >some later point
in time?
I don't think so, and as I mentioned yesterday, this would be
a bad argument for a fanfic writer to make, as it would create
an enforcement obligation where none existed. Far from being
a good thing for fanfic, it would be a bad thing if that were
indeed the law -- then TPTB couldn't just look the other way
in the future, they'd have to start cracking down like trademark
holders do. I know of no copyright case that accepts such an
argument, although a fanfic lawsuit would be quite different
from your average copyright case.
>If the fanfic writer could show that TPTB had tacitly ?>allowed
fanfic to be written for a long time, and thus >tacitly allowed
the
>infringement, would that have any bearing in a real case?
Well, again -- "written" and "distributed" are two vastly different
things, and the fanfic writer would have a rather serious problem
of proving TPTB's actual knowledge. Even if they could prove
TPTB allowed fanfic to be distributed on their web site, for
example, that's not the same thing as permitting distribution
anywhere. TPTB could argue they offered an implied license for
fanfic to be published there only, for example.
At best, this would be an equitable defense that might have some
bearing on the remedies that were awarded to the copyright owner,
but the long-term negative effect of that argument -- creating
an enforcement obligation -- would far outweigh any benefit
for fanfic writers, IMO.
>Also, regarding the HL franchise, since "Highlander" came >out
in 1985, doesn't the original copyright start from >there? Or
is each individual media event--movie, series, >series episode,
etc.,
>individually covered by copyright?
Each movie, episode, etc. is individually covered. You can't
copyright "a universe" only the movies/episodes that make up
that universe. That's why I said before that if a derivative
work was created after the original film was out of copyright
but before Endgame was, for instance, then they'd have to fight
about whether it was a derivative work of the original or Endgame.
>Thanks again to Julie and Lynn for the clarifications and
>definitions--they help make the discussion much better!
Always happy to help the author of my favorite Connor story :)
I don't do IP work anymore so it's nice to keep the concepts
fresh in my brain somehow.
Lynn
------------------------------
Date: Thu, 26 Jul 2001 13:40:49 -0400
From: Dragon Lady <dragonlady@darkmage.net>
Subject: Re: copyrighting characters (was bootleg tapes & more)
At 7/26/01 01:14 PM, Bridget Mintz Testa wrote:
>But are the characters themselves copyrighted?
In most cases the characters are trademark protected.
--DL
------------------------------
Date: Thu, 26 Jul 2001 11:00:17 -0700
From: Lynn <lloschin@sprynet.com>
Subject: Re: copyrighting characters (was bootleg tapes & more)
From: Bridget Mintz Testa <btesta@firstworld.net>
>>Actually, I have another question for Lynn and/or Julie regarding
copyright. I know that you can copyright cartoon/comic characters
like Superman, Donald Duck, and the like, but are characters
created for television shows, movies, etc., in the same category?
Are Connor
MacLeod, Duncan MacLeod, Amanda, Richie, et al, copyrighted?
>>
>>Thanks in advance for clarification on this.>>
Sorry to say that the clarification I can offer is anything but
clear.
It's clear that you can't copyright a character's *name* -- I
know that's not what you're asking, but I did want to distinguish
that from the whole of the character -- their personality traits,
their fictional "history", etc.
This is far less clear. Scholars have differing viewpoints and
the case law on this issue is quite old, unclear and not especially
helpful.
In Nichols v. Universal Pictures Corp., 45 F.2d 119 (2d Cir.
1930) Judge Learned Hand suggested that a well-developed character
could be protected independent from the story. He wanted to
distinguish a well-developed character from a "stock" character
or archetype -- let's be honest -- remember all those cops in
season 1 Seacouver episodes? Were they really much different
from cops in a million other TV shows or movies? Or Randi, obnoxious,
ambitious girl reporter? If such a general character type could
be copyrighted, a lot of future TV shows/movies would have a
problem (although personally I wouldn't cry many tears over it
:) This seems to reflect the prevailing view among scholars
-- well-developed characters can be protected, mere archetypes
("aging hooker with a heart of gold") cannot.
The famous case with a different view involved Sam Spade in The
Maltese Falcon: the court held that the character Sam Spade was
merely a vehicle for telling the story, rather than an essential
part of the story itself, and therefore Sam Spade as a fictional
character could not be protected under the copyright law. Warner
Bros. Pictures v. Columbia Broadcasting Sys., 216 F.2d 945 (9th
Cir. 1954). Now a lot of people would take issue with the conclusion
that Sam Spade was not an "essential" part of the story. This
is usually called the "story being told" test -- if the character
is an essential part of the story rather than merely a device
for telling it, then they might be entitled to protection. How
exactly you figure this out and the enormous subjectivity of
it are very problematic.
My law school copyright prof studies this area (she used to be
an actress) and she does believe that fictional characters are
copyrightable, but to amount to infringment, "substantial similarity
must exist not between names or types of characters, but in the
complex of characteristics that amount to creative expression."
(Leslie A. Kurtz, Independent Lives of Fictional Characters,
1986 Wis. Law Rev. 429, 467.)
So the answer I would give is a "probably" at least as it applies
to the major characters like Duncan, Connor, Richie, etc., who
were developed sufficiently to have many identifiable characteristics;
as to Sargeant Powell or the ambitious blonde Paris police inspectors
(there were a bunch of them, weren't there?) probably not.
Whether this has any practical relevance is another question
-- a copyright holder has the exclusive right to make derivative
works, and fanfic is a derivative work. So even if the characters
aren't independently copyrightable, fanfic is still a copyright
violation as an unauthorized derivative work, unless a defense
like fair use applies.
Now if you really wanted to extract a non-copyrightable character
like Inspector Whatshername from Prodigal Son, and write a story
outside the HL universe about her that never mentions anything
to do with HL and couldn't fairly be called a derivative work,
well, maybe you could. Unless you told anybody "hey, this story's
about the inspector from Prodigal Son" how the heck would anybody
know? (And would they care? And why would you want to do this
anyway? :)
Anyway. There are also trademark and unfair competition issues
surrounding the issues of rights to characters, but that's far
more than any reasonable person would want to know. :)
Lynn
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End of HIGHLA-L Digest - 26 Jul 2001 - Special issue (#2001-221)
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