HIGHLA-L Digest - 26 Jul 2001 - Special issue (#2001-221)

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      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
      
      ------------------------------
      
      End of HIGHLA-L Digest - 26 Jul 2001 - Special issue (#2001-221)
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