Comments

For a long time, fans have been unaware of their rights concerning the constraints companies wanted to impose on their online freedom of speech. Also, most discussions of intellectual property in cyberspace have been occupied with the corporate side of things, as described in the previous chapter. The public interest was mostly ignored.[1] Big corporations shutting down small fan sites is routine practice, but not a single case involving fan fiction has ever reached the courts. No lawyer has offered an accused fan site owner legal representation and these individuals don’t have the money to take on huge companies on their own.[2]

This lack of attention for the side of the fan is changing however. The Electronic Frontier Foundation is now fighting to defend users of the Internet in copyright cases. Together with four law schools, Harvard, Stanford, Berkeley, University of San Francisco, and University of Maine law school, EFF’s legal director Cindy Cohn launched the Chilling Effects website.[3]

The site, chillingeffects.org is a response to the growing number of ‘cease-and-desist’ notices owners of fan sites have received from companies like Warner Bros. and LucasFilm, urging them to shut down their sites due to infringement of copyrights. Since these claims often involve rather large sums of money, people are likely to respond by closing down their sites, rather than keep it up in protest. The website offers background material and explanations of the law for people whose websites deal with topics such as fan fiction, copyrights and trademarks. Each of the topics the site offers, like protest, parody, fan fiction, linking and derivative works, is accompanied by an extensive list of FAQs, frequently asked questions and their answers.

Chilling Effects is dedicated to educating people about their online rights, which are far more extensive than most fans realise. Many of the companies’ claims are unfounded on account of ‘fair use’ of the material. Chilling Effects also advocates the distinction between different forms of infringement, because, for example, the posting of movie clips is very different from the rewriting of existing characters into completely new stories and settings. The site also invites people to submit the ‘cease and desist’ notices they received from companies, in order to ‘document the chill’, to find out what sorts of sites get shut down most often.[4] Unfortunately, Chilling Effects doesn’t have the resources to treat every case individually, but it is a start.[5]

Research

For my research, it would be very interesting to look at this site in order to create an overview of the aspects that have to be taken into account when looking at online rights. It is great that people like Cindy Cohn have taken to educating people about their online rights, but do they actually reach the public? I wonder whether writers of fan fiction ever think about issues of infringement, and what their response would be to the ‘cease and desist’ letters. Is it still true that most writers have no idea of their rights or the possible consequences of their appropriation? Most fan sites that offer fan fiction also offer the possibility to contact the writers, be it directly or through a central mailing system. By sending the owners or contributors of fan sites e-mails I could find out whether the fan fiction writers ever think about that would happen when the companies that own the characters they use would find out about their site. Do they even consider this possibility and are they aware of the possible consequences and the possible defences against any regulatory measures? How would they react to scary cease-and-desist letters? The Chilling Effects site will be very helpful in the understanding of the rights of fans.

Question: Do fan fiction writers have a free speech right to publish their work?

Answer: The First Amendment protects free speech, but there is also a copyright clause in the Constitution. These two legal rights are often in conflict, and so the rights of fan fiction writers to write and speak freely and the rights of the copyright owner must be balanced. Each situation can be researched and individually evaluated, but it is important to understand there are no easy answers as to who has a right to the characters. Copyright law is designed to encourage authors to be creative by rewarding their efforts and protecting their work from others who might profit unfairly. This right must be balanced by society's need to have others not be limited by previously published protected works. There is not a clear "right" and "wrong" side in the battle between copyright owners and fan fiction writers.

Question: How likely is copying to be found (by a court) and what are the possible remedies?

Answer: As mentioned in the legal introduction, a plaintiff must meet certain requirements in order to show that a FanFic author copied protected expression. In order to prove copying, it must be shown that the fan fiction author copied the work (either through direct or indirect evidence), and some of the copied elements are protected and that the "audience" of the work would also find similar elements. Since FanFic authors generally do not deny that characters and settings are borrowed ("copied"), as seen in their disclaimers, it is likely that copying will be found. Then you must raise the defense of fair use.

What happens if I lose the case? If the court finds that you unlawfully copied, it has several possible options. First, and most likely, an injunction could be granted to prevent the author from publishing and distributing the FanFic. The infringing materials could even be destroyed. The court also has the power to award monetary damages. The amount of damages would depend on the lost revenue suffered by the copyright owner and possible profits earned by the FanFic author. Generally, the loss of revenue is rare since FanFic does not draw audiences away from the original; rather, FanFic often serves to enhance sales of the original work. And if FanFic is not for profit, then it is unlikely that the author will have any profits to report. Since there is seldom lost revenue and profits, plaintiffs will often go for "statutory damages." This award can be between $200 (innocent infringement) and $100,000 (willful infringement) for each work infringed.

Conclusion – further research

In my final and more elaborate research, I want to look at the elements I treated in this paper more closely, whilst also attempting to answer the questions I added under the header ‘research’. The main goal of this research will be to create a historical overview of the user-company relationship from both sides, the users, or fans, and the owners of the copyrights. In order to do this, I will also have to look at some current cases of, one the one hand, companies like Amazon that encourage fan input an appropriation, and on the other hand, companies like Warner Bros that forbid this. What are the arguments both parties use in acting the way they do? In the end, I hope to be able to analyse where the current developments in participatory culture are taking us.

Preliminary bibliography

[1] Henry Jenkins, ‘Digital Land Grab’ in Technology Review, Mar/Apr2000, Vol. 103 Issue 2, p103.

[2] Henry Jenkins, ‘Digital Land Grab’ in Technology Review, Mar/Apr2000, Vol. 103 Issue 2, p103.

[3] J. Kornblum, ‘Scary Lawyer Letters and Chilling Effects’ in USA Today, Feb 26, 2002, p6.

[4] http://chillingeffects.org

[5] J. Kornblum, ‘Scary Lawyer Letters and Chilling Effects’ in USA Today, Feb 26, 2002, p6.

User’s Rights

Are people still unaware of their online rights?

Research

Conclusion – further research

Preliminary bibliography