Copyright Society: fan productions

Crowd-Sourced Editorial Content and Fan Productions
[Note: this is accidentally on purpose the perfect encapsulation of the move to monetize fandom: Four dudes sitting on a panel and telling me the history of fan fiction.]
Moderator: Jay Kogan, DC Entertainment
A few years ago we talked about fan productions, new business models. Most people had begrudging tolerance to noncommercial fan stuff—commercialization was the big issue on taking action. Some people were looking to get free publicity/promotion; Lucasfilms did some stuff on fan films if Lucas owned the rights. Moving forward from that conversation to new business models that allow fans to create new content, but IP owners partner in a sense with the fans to create new IP in which both IP owners and fans can get a commercial benefit. Can be tied to social media, which invites more participation with users, gameplayers, fans.  Like digital music: recognizes demands, facts that fans will create. Instead of fighting, figure out how to make money.
What’s going on out there:  What fans are doing and what’s being done through legit authorized sources.  Video touting Kindle Worlds, which is hilarious because it presents fanworks as an incredible new opportunity brought to you by Amazon. “Right where you want to be.”  Um, actually, no.  Then Star Trek:TOS watching Miley Cyrus twerk.  Audience finds it hilarious.  Then a movie trailer recreated in a game engine.  Sorry, could identify neither.  But the engine allowed pretty good replication.  Then Buffy v. Edward, which most of the audience took a while to warm up to (quelle surprise).  Then a videogame play video with a profane commentary track.  Fan-designed Lost T-shirts and other tchotchkes from CafePress.  Where the Wild Things Are/some sort of inspired work—subject to takedown claim.
Copyright/TM owners find some sites problematic, and enter into deals allowing creation of fan-authorized merchandise. DeviantArt is an example of art with characters.  Business model: run contest for IP owners; winners get prizers and owners can use the art under license/assignment.
Matthew Bloomgarden, Alloy Entertainment, A Warner Bros. Entertainment Company
Moderator asked him to tell us about the history of fan fiction.  B: traditionally it’s works by amateur writers who write their own stories. Now we’re trying to monetize it, v. stories on where they’re all available for free. No way to sort through 600,000 stories (I hope no one tells him about recommendations), or to make money, or to police that number of stories.  Royalty is pretty competitive for Kindle Worlds—similar to net profits from ebook sales. An official way out of the mess/lost in the sea.
Q: is there a limit on how many there can be?
A: No, but there are rules on the world. Can’t crossover, can’t use too many elements from the TV shows.  Can’t novelize the TV shows.
S. Gregory Boyd, Frankfurt Kurnit Klein & Selz, PC
Plenty of tolerated use in games.  Some companies are doing revenue shares in “let’s play” games where the voiceover is sometimes funny, critical, or not either.  Steam—largest games digital distribution network. Steam Workshop: you can open up your game to modding.  Users can sell content and receive 25% for that.  Could we have too much? We could, but in medium/long term iTunes quality will emerge: people will buy the good stuff and it will percolate up to the front page.
Q: do you find that authorized fan fiction etc. causes a decrease in distribution of unauthorized product/move to legitimate product?
Bloomgarden: Lots of press about Kindle Worlds/Gossip Girl in particular; only about 20 official books in that space. So they’re not lost.  More are added on a regular basis.
Boyd: wasn’t it a success when the Vampire Diaries writer returned?
Bloomgarden: the writer who wrote the first 7 books stopped because of creative differences.  She went away with stories she wanted to tell, and now she has the ability to tell them; the fans wanted her take.  She’s picking up where she stopped.
Q: now she’s earning money in her fan capacity—is she making less than she would’ve?
A: she’s said she’s doing it more to get her stories out there; yes.  It will open the door to other things for her.  (Because she wasn’t known before, right?)  Another fan who just wrote VD stories—very talented, now we want them to write official books—crossover both ways.
Art Neill, New Media Rights
Q: revenue sharing models like this don’t exist on video sites. Who owns what on Kindle Worlds?
A: you give up to your rights to the story in exchanged for a fixed percentage. All rights go into the program but you’re guaranteed royalties (as traditionally authors were too—it’s not a trade).
Q: can you publish elsewhere?
A: he doesn’t know.  I do: no.
Q: what about derivatives?
A: No.  We included payments as presale element and avoid any claims and you’ve already agreed that we can use your work for an episode (in case you thought it was copied but we were really already working on it).  (This seems slightly in tension with the claim that the payment is the same as for a traditional author: the payment is the same, but the content owner/publisher receives more for that royalty.)
Neill: discussed the Buffy v. Edward takedown and controversy.  Content ID took 3 months.  We were told it had to be monetized by them or it would go down. But it’s fair use.
Current system doesn’t leave any room for monetization by uploader—split between Content ID claimant and Google. 
Q: if they accept money for something that’s not authorized—do they then authorize it?  If there are third party participation deals, do they have to start sharing the money? 
Boyd: Many properties are often involved with videogame content—music, character claims can be made even when the game company is fine with it.  Lots of times the contract didn’t even anticipate that in the game-music licensor deal.
IFPI cited the Star Trek Miley Cyrus video in its report on monetization, but when we tracked it back the original video was not monetized; it’s still there not monetized. There are multiple unauthorized versions that have been monetized.
Kogan: we’ve seen fan films that were noncommercial, then monetized by someone else.
Neill: Many copyright holders = much confusion.  Many people are now making more money on monetizing third party content than on their own content.
Boyd: done more deals with people with large followings than I’ve done takedown or revenue share claims. The business case is clear for him.  Can’t say that this is the future model, though.  Old UGC case: Duke Nukem, decided when internet had only been publicly available for a year. The person who gathered the fan-made levels from all over had a much weaker case than a fan who made her own and tried to monetize on her own.
Neill: Many questions are still outstanding: Marvel v. NCSoft settled. 
Boyd: We’re giving people “thought processors”—they can make anything, including existing characters; that’s internally policed; we don’t want it because it breaks the fourth wall. Players don’t want to see Batman outside of a Batman game.
Q: best practices?
Neill: we’re seeing online video explode. There are different categories of videos, some critical. Good to think about fair use not just legally–§512(f)—but publicity penalties from overreach are painful.  Room to create more than sharecropping space, but where videogame creators get to get rewarded from significantly adding value.  You get better content.  Content owners can give people new ways to take part—right now people don’t necessarily know where to go with their good ideas.  Steam has taken modding from random websites to coherent.
Boyd (I think): TV and film has to change its culture; it’s afraid because it has a long history and also a bunch of talent agreements—videogames didn’t have that entrenched culture.
Kogan: film agreements often require exclusive rights—that can be a barrier to fan films.
Are you concerned about infringement in Kindle Worlds? DMCA?
A: we have that in our Amazon contract, if works go outside the parameters—it will be taken down.  One big example is film/TV—hard to open that up to fan fiction/fan use because of all the guild requirements.  WGA requires payments.  Opens up so many doors it’s easier not to get into it. In publishing it’s just the author, and thus easier.
Boyd (I think): they do recognize, but they have a list of reasons it’s hard to change.
Kogan: have you seen a case where an IP owner pursues rights to a fan creation it loves?  Marvel is said to have taken fan images of Hulk and used them in the background.
Neill: see it a lot—people put a lot of work into existing characters/content, taking them to new places.  But what happens is that if it’s not a strong fair use argument and not in Steam/Kindle Worlds it goes into a strange place; level of creativity doesn’t matter. Almost out there for the taking—Anderson v. Stallone.
Bloomgarden (I think): Nobody wants to miss out on the next 50 Shades of Gray.
Neill: You either do a deal or help the person take it a different direction.
Kogan: Wasn’t it the fan fiction that brought her the notoriety for 50 Shades?
A: but they changed the connection to Twilight.
Kogan: 60 Years Later/Catcher in the Rye case?
Neill (I think): All the things we did when we were learning how to be creators—write extra chapter, make our own ad—can be shared so easily.  Difference is that now these things have real value.  (Um, they always did.) Issue is creating legal structures and values. There are situations where a bulk of what’s added is really remix from the downstream creator, but sometimes it’s almost verbatim.
Kogan: how does crowdfunding change the dynamics of fan productions?
Neill: You always have to have the rights or it will be taken off it comes to the attention of the platform, because the platform doesn’t want that. Kickstarter: the original creator of GI Joe wanted to launch a new military series.  There were similarities with GI Joe.  Turned out that the movie company that got his attention had done a GI Joe fan film; he wanted to work with them. Did fair use/truthful: from the creator of GI Joe.
Bloomgarden: with the Vampire Diaries, there were contract/noncompete issues—we agree not to compete with the books we give the publisher, which in a way did happen when LJ Smith returned to the field.
Kogan: when you make deals with CafePress/DeviantArt, you try to work into the deal additional obligations to restrict/prohibit/police their site from third party infringements, so you aren’t dependent on the DMCA, in exchange for authorized fan art.
Q: did Lionsgate say they could do an official crossover with Buffy, and that meant the fourth factor favored them?
[sexist joke omitted]
Neill: No, they didn’t.  There are a lot of nonattorneys doing the work—they’re just hired to do takedowns; didn’t necessarily have the sophistication—or the will—to do that analysis.  There’s a real need to get out there and do workshops and talk to creators and raise awareness of basic copyright issues. That would help everyone.
Q: when you acquire fan content, is it work for hire?
Bloomgarden: yes, that will come up in 35 years.  Hard to make the claim it’s a contribution to a collective work even if it is part of a series. 
Kogan: could acknowledge that it’s using underlying copyrighted content—they’re frozen, but they could stop you from using it going forward.
Q:  MicroStar, given the tech at the time: as a practical matter, user couldn’t collect levels and sell them in retail stores.
Q: what about crowdsourcing, when lots of people come together to create one thing?  Star Wars Uncut, where people contribute their own reshot scene of Star Wars and they’re sewn together.
[discussion of contracting electronically—what works?  Acting at least in the US as if e-signing was sufficient; can embed links to short licenses/hashtags for quick licensing for some game content]
Q from Joe Gratz: when he thinks fan fiction, he thinks of slash.  Will copyright owners try to go after fanworks that go outside Kindle Worlds guidelines?
A: great point. They will fall outside official licensing.  Those are the works that have the best fair use arguments.
Kogan: most IP owners prefer to look the other way rather than lose a case that would set a bad precedent.  Vivid Entertainment: porn parodies. Almost every studio’s properties are used. Three Stooges sued them; people are afraid because it’s costly and a loss would not be good. They want to bring it on.
Boyd (I think): Existing market was argued in Perfect 10. Establishing a market can help plaintiffs.
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