Fan fiction: a very sticky issue

Imagine reading a Harry Potter book in which Harry and Draco discover their undying love for one-another, and enter into a steamy secret affair. Or watching an episode of Starwars where Luke goes crazy and kills all his friends, even the undeniably cute-looking Yoda. All this, and more, is possible in the ever-growing world of online fan fiction.

Fan fiction (according to the fan fiction glossary) is “a genre of amateur creative expression that features characters from movies, TV shows, and popular culture in new situations or adventures.” Most of these stories are written by fans who hope to share their ideas/ imaginings about established works, and there is usually no commercial interest attached. Fan fiction authors usually want to add new characters (often idealised versions of themselves, as a sort of wish-fulfillment that allows them to be a part of their favourite book/TV series), or they often detail certain characters which they feel have been overlooked (for example, fan fiction authors in the Harry Potter fandom often write short stories that add greater detail to overlooked side characters such as Susan Bones). They may also use their fan fiction is a means of sharing their ideal ending to a series.

For example, the phenomenon of “Scully/Mulder” shippers (relationshippers) lead to various archives and newsgroups which published amateur stories which described a romantic relationship between Scully and Mulder of the X-Files. In short, fans of the TV show who were tired of waiting for the inevitable romance between the two main characters to develop, took matters into their own hands, and wrote their own short stories and TV scripts to share with other fans. These derivative works are of course unauthorised, which brings with it a difficult legal question: is this online copyright infringement?

Authors, publishers and owners often view fan fiction as the use of trademarks and original characters without the owners consent (and therefore a copyright and trademark violation). This is especially true when there is a misrepresentation of the original characters. For example, JK Rowlings has had her lawyers send cease and desist letters to restrictedsection.org after slash fiction (pornographic fiction) featuring her characters was published on the site.

When faced with a lawsuit, authors of fan fiction can argue fair use (see my blog below), in that fan fiction is often non-profit and transformative, in that it re-interprets the original art and gives it new meaning.

Of course, not all companies view fan fiction as an entirely bad thing. Paramount Pictures encourage the writing of Fan fiction as they believe that it could actually help boost their sales.

In my opinion, there’s nothing wrong with fan fiction, as long as a short disclaimer is included with the story and the personas of original characters are not violated (I wouldn’t want to read a short story in which Hermione becomes bulimic and has an illegitimate child with Snape… that would damage the integrity of the authors original vision …. but I don’t see anything wrong with someone writing out the imagined chronicles of Dumbledore’s childhood).

I have included some fan art with this blog (fan art is like fan fiction, only in the form of a graphic, rather than a literary, form). Take a look and let me know what you think – should fan fiction be allowed?

China’s great wall of fire

A lot of my blogging thus far has been about the intellectual property side of online freedoms. I decided that this week I would focus more on freedom of speech, and censorship, on the internet. It turns out that online censorship has been making international headlines recently due to the suit bought against Yahoo! for aiding in the imprisonment and torture of Chinese bloggers. The USA branch of The World Organization for Human Rights claims that Yahoo! assisted in human rights violations by giving up the information of a dissident Chinese journalist (one of many over the past few years) which resulted in his arrest and torture.

Yahoo! says that it had no choice in the matter because its Chinese subsidiary is obligated to follow Chinese information laws, however, the World Organization for Human Rights argues that the company should also consider international ethical and legal standards.

Despite pressure from international organizations and lawsuits such as the aforementioned example, it seems unlikely that things are going to change anytime soon. Internet censorship in China is deeply entrenched and strongly enforced. The Golden Shield Project, also known as the Great Firewall of China, has provided an infrastructure for an internet police task force, who work as censors and monitors. IP blocking, DNS filtering and redirection and URL filtering also suppress freedom of speech on the internet in mainland China. Through these channels of oppression, various comments and content are removed everyday, especially those which are critical of the government or which are related to taboo subjects (such as democracy, outlawed groups and the International Tibet Independence Movement).

As bloggers in a country which allows for freedom of expression, South African journalists need to be aware of journalists elsewhere who don’t have the same freedoms, and who risk imprisonment or torture for fulfilling their journalistic duties.

YouTube in court again

In light of how many bloggers embed YouTube videos in their blogs, I decided to focus this week on YouTube’s current legal troubles.

Once again YouTube is under fire – this time from the National Music Publishers' Association (NMPA). The NMPA claims that songwriters (signed up with them) haven’t been receiving proper compensation for music which has appeared in YouTube videos. The biggest plaintiff, Viacom Inc, owns Paramount and MTV. Viacom will be suing YouTube for over 1 billion dollars, for allegedly posting over 160,000 of their videos without permission.


However, YouTube claims that it is complying by the law by “immediately taking down any clips found to be violating copyrights after receiving notification”. Their use of antipiracy software (such as audio-signature technology, that can detect a copy of licensed video) has helped a fair amount, but thousands of illegal videos are still available on the site.


Where all this is relevant to bloggers (and in fact to anyone who likes to incorporate YouTube videos into their site), is that content owners are not only targeting YouTube for copyright infringements, but are also after third party websites that link to infringing YouTube content. So you could be held responsible for even linking to a video which infringes on copyright. Although the chance is quite minimal that the content owners would really bother about suing someone for embedding a video on their blog, one has to remember that its not just about getting caught – linking to a video that is clearly infringing on copyright just looks bad as well.


These are things you should look out for when embedding a YouTube video on your site:

- don’t use anything that has a soundtrack which has clearly been used without permission (for example, a mash-up with a Madonna song in the background)
- same goes for movies – don’t link to videos where more than 10 seconds of a copyrighted movie appears – anymore than 10 seconds and its not fair use. See my post last week for more information on fair use.
- check out if there is a copyright notice or disclaimer at the end of the video – this can indicate whether or not the creators got permission for the owners of the work


All in all, one should be very careful about what you link to, especially if it’s from YouTube.

Fair use in SA

I recently discovered a really great media law podcast called Legally Content, a must for anyone interested in intellectual property issues. Last week's topic was fair use. I suggest that you click on the above link to listen to the latest episode of Legally Content, before reading my discussion of fair dealing in SA.

Fair use, like Creative Commons, is another way to get around the totalitarian extremism of copyright. Fair use allows for the limited use of copyrighted materials (without the permission of the authors/owners), as long as four conditions are met:

- the derived work must be a “transformative use” of the original. In other words, something new must be made of the original work. This is why parodies (such as Weird Al Yankovich’s Madonna rip-off “Like a Surgeon”) fall under fair use.
- The nature of the copied work must be taken into account: autobiographies, documentaries etc are more likely to be legally copied (under fair use) than fictions, films etc.
- The effect on the monetary/market value of the copied work: the copying of the work must not diminish the market value of the work.
- No more than 10 percent of the original may be copied, and the heart of the work is off limits (the heart of a work is its main theme, eg: the twist at the end of a movie, the conclusion of a book)

If all these factors are met, then one may argue fair use.

In South Africa, our fair use policies are less clear and much less effective than those in America. In the South African Copyright Act of 1978, fair dealing (the South African derivative of fair use) is described in section 12(1) of Act 98. I quote:

“ Copyright shall not be infringed by any fair dealing with a literary or musical work

(a) for the purposes of research or private study by, or the personal or private use of, the person using the work;
(b) for the purposes of criticism or review of that work or of another work; or
(c) for the purpose of reporting current events
(i) in a newspaper, magazine or similar periodical; or
(ii) by means of broadcasting or in a cinematograph film;
Provided that, in the case of paragraphs (b) and (c)(i), the source shall be mentioned, as well as the name of the author if it appears on the work. “

Notably, the above passage does not account for the use of film or radio snippets. Its pivotal for new media journalists to keep this in mind when creating multimedia packages for the internet. One may not legally use any film snippets, and permission must be gained to use music or snippets from literature.

Facebook under fire

For the last week, Facebook has been in court over one of the biggest intellectual property scandals this year. The founders of rival social networking site “ConnectU” claim that Mark Zuckerberg, the founder of Facebook, stole their ideas and trade secrets.

Their story goes like this:

- While ConnectU's founders Cameron Winklevoss, Tyler Winklevosss and Divya Narendra where attending Harvard, they began working on Harvard Connection, a social networking site (later renamed ConnectU).

- The plaintiffs claim to have hired Zuckerberg (at that time sophomore at Harvard) to work on the computer program software and database definitions for Harvard Connection, and even gave him access to the source code for their site.

- The plaintiffs claim that on Jan. 11, 2004, Zuckerberg registered the domain name “TheFaceBook.com” and launched Facebook on Feb. 4, 2004, using information gleaned from them.

- Zuckerberg allegedly never gave them the promised code, and never completed work on Havard Connection.

- The three then filed a lawsuit accusing Zuckerberg of copyright infringement, fraud, and misappropriation of trade secrets. The plaintiffs hope to get the hugely popular site shut down, and want all assets transferred to ConnectU.

Although Facebook’s attorneys claim that the allegations are are unsubstantiated with evidence, if it’s found that Zuckerberg did steal ConnectU’s intellectual property the results will be momentus. Facebook, valued at about 4 billion dollars (though this is arguable) and with 30 million active members, has a lot to lose.

As a user of facebook, I’m hoping that the allegations against Zuckerberg are false, and that Facebook wins the case.

So is this a case of dishonest disgruntled ex-colleagues with stars in their eyes, hungering over a piece of the Facebook pie? Or do the claims have something to them?

Only tomorrow’s ruling will tell.

Copyright set free

In this weeks blog I will be discussing a project which is itself a “golden mean” between the harsh stipulations of traditional copyright and the free-for-all of putting one’s work into the public domain – The Creative Commons.

The Creative Commons is an innovative project which gives authors the option to declare“some rights reserved.” Unlike the black-and-white totalitarianism of traditional copyright ( with “all rights reserved”, which can seriously stunt the life of a work) or the anarchy which results when no rights are retained (and an author’s work may be exploited), Creative Commons aims to protect the work while still encouraging transformative, innovative uses of it.

Creative Commons was in part inspired by the Free Software Foundation’s GNU General Public License first project (GNU GPL), however, unlike the GNU GPL, Creative Commons does not deal primarily with software : instead, it’s focus is on the licensing of other cultural commodities such as photography, literature, artworks, film, websites, scholarship etc.

Getting a Creative Commons license for one’s work (whether it be a photograph or a flash cartoon) is a great way to to retain one’s copyright while still licensing the work as free for certain uses on certain conditions. Allowing for a fair amount of freedom can keep your work “alive” for longer.

To give an example, imagine you take a photograph of a sunset. If you were to get it copyrighted and have “all rights reserved”, anyone wanting to use your photograph will have to get your permission, and possibly pay you to use it. This can be a huge discouragement to anyone wanting to use your work, and it may mean that your work never really has the chance to “evolve”, or to be more widely circulated. If, however, you are not terribly concerned about getting money from anyone using your work, and you opt for “some rights reserved”, you may find that your photograph exceeds its bounds, and is used in a variety of interesting and exciting ways (for example, maybe someone will incorporate your photograph into a webdesign, or a painting).

There are four conditions which one can apply to one’s work with a Creative Commons license:

-attribution requirement: the work may be reproduced and redistributed as long as credit is given
- no commercial use: the work may not be used for commecial purposes, unless permission is granted
- no derivative works: work may be copied and redistributed, but may bot be altered or transformed
- share alike option: people who use the work must make it available on the same terms given in the license

As media producers, we are often involved in personal side-projects – from designers making digital artworks in their spare time to print journo’s writing a book on the side – and its important to think very carefully about how to license one’s work before sharing it with the world.

First for SA : domain name dispute decided

7th of June saw a first in domain name dispute resolution. For those of you who don’t have a clue what a “domain name dispute” is, I’ll break it down:

Wikipedia defines domain name as “a name that identifies a computer or computers on the internet. By allowing the use of unique alphabetical addresses instead of numeric ones, domain names allow Internet users to more easily find and communicate with web sites and other server-based services.”

Cybersquatting is the act of taking a domain name that resembles a trademark in order to profit from traffic to that address, or with the intention to resell the domain name for a hefty price. This obviously is considered as a trademark infringement.

The recent ruling was an adjudication which ensures that there is a fast, inexpensive procedure of challenging someone else’s registration of a domain name, either because it is abusive (takes unfair advantage of, or is used to infringe, someone else’s rights) or if it is offensive (contrary to good morals, eg. sexually or racially offensive).

Yesterday’s ground breaking ruling by SAIIPL concerned a case where the domain name www.mrplastic.co.za was registered by a
business which was one of several trading as “Mr. Plastic” in the plastics
trade. The closed corporation which originally started trading as “Mr. Plastic” 27 years ago (and which had allowed the business in question to use the same trading
name for some 18 years) objected, and applied for the domain name to be
transferred to it.

The Adjudicator refused, holding that the objector hadn’t proved that the name “Mr. Plastic” was distinctive to it. The position would have been different if the original business had registered the name ”Mr. Plastic” as a trademark, or if it had only allowed other businesses to use the trading name under a license agreement.

This is an important move in online freedom in this country: although laws can obviously restrict freedom at times, I think this is an important development towards keeping those people who prey off the internet and the intellectual property of others at bay. The specific decision of the judge in this case also shows a balanced approach to the issue.