Fair use is … wholly authorized by the law. That’s what the 9th Circuit said today, in a ruling that will become a terrific tool to support sharing of transformative works (like fanfic, fanart, cosplay, fanfilms, filks, etc.).
Back in 2001 and 2003, when I first started writing and speaking about fair use in connection with what we’re now calling “fan law”, we did a lot of argiing by analogy. Caselaw hadn’t really caught up with how people were actually using the internet and definitely hadn’t caught up with the idea that fans of a show or book or film or band or piece of art or work of creativity would create a “follow-on work” and share it at no cost to anyone, on the internet.
But lawyers argue by analogy - we go before a court and say “this is similar to that, and thus the laws for that should also apply to this”. That’s how it works (at least in the US) so it was reasonable to say because of court rulings in The Wind Done Gone and the 2 Live Crew case re Pretty Woman, or a 1996 case in the 11th Circuit that said “ fair use is not an infringement, that (noncommercially distributed) fanworks - as transformative works - were fair use and thus were not infringements of someone’s copyright.
By and large, over the last fifteen years (and actually, through the 90s too) the courts have agreed with this concept every time something that parallels an aspect of fanworks comes before an appellate court. Click the Fair Use tag here for examples.
However, today the 9th Circuit issued its ruling in Lenz v. Universal, a case that dates back EIGHT YEARS to a pre-Google time at YouTube, when the tv networks were all freaking out about this new way that people could get content via the internet, and the music companies were continuing their perpetual angst about the idea that certain uses of songs could be, in any way noninfringing.
While Lenz doesn’t really redefine large swaths of law, it makes a few points explicit and clear:
- Fair use is not just excused by the law, it is wholly authorized by the law.
- A copyright holder must consider the existence of fair use before sending a takedown notification.
- The DMCA requires consideration of fair use prior to sending a takedown notification…
- If a copyright holder ignores or neglects our unequivocal holding that it must consider fair use before sending a takedown notification, it is liable for damages.
- A copyright holder who pays lip service to the consideration of fair use by claiming it formed a good faith belief when there is evidence to the contrary is still subject to §512(f) liability.
The court also quoted a brief from transformativeworks (OTW/AO3) where we set forth when computer programs might be of use in finding infringements where “(1) the video track matches the video track of a copyrighted work submitted by a content owner; (2) the audio track matches the audio track of that same copyrighted work;and (3) nearly the entirety…is comprised of a single copyrighted work.” As you can see, that process wouldn’t be applicable for fanworks.
The ruling doesn’t mean an end to automatic takedown notices; where a file of concern matches exactly to a single copyrighted work *and* nearly the entirety of the file of concern is comprised of that single copyrighted work, bots and automated notices would still be viable.
But a video manifesting mashup culture or a story that’s a follow-on work or a meme that includes a copyrighted photo and text that comments on or criticizes something, or educational infographs should not be DMCA-ed by autobots, and any analysis by the copyright-holder of the fanfic, fanart, etc. they’re looking at must actually look to current law regarding whether something is a transformative work/fair use/otherwise noninfringing.
Does this mean that creative fans will suddenly start experiencing fewer DMCA takedowns? Possibly, but also maybe not. But it does mean that if a creative fan gets a DMCA takedown/notification about fanworks (especially when there’s no commercial sale) the fan can and should push back on whether the sender has actually considered fair use; if it’s obvious that they haven’t, the creative fan may be able to seek damages.
Perhaps that risk of damages will be a disincentive to copyright-holders, so they focus their attention, and DMCA notices, on works that are actual counterfeits - copies of entire movies, books or tv serieses, or high resolution copies of art.
Copyright holders cannot shirk their duty to consider—in good faith and prior to sending a takedown notification—whether allegedly infringing material constitutes fair use, a use which the DMCA plainly contemplates as authorized by the law.
And that’s a good thing.
Now that you’re up to date on fair use law, check out the discussions that OTW’s Legal Chair Betsy and I had with @fansplaining last week at http://fansplaining.tumblr.com/post/129075003713/transcript-fansplaining-ep-4-buncha-lawyers
Mattalyst
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fyeahcopyright: heidi8: Fair use is … wholly authorized by the...
sixpenceee: Caterpillar of Saturniidae Moth by Marco Fisher The...
Caterpillar of Saturniidae Moth by Marco Fisher
The photo depicts an incredibly ornate caterpillar: the larval form of a moth from the insect family Saturniidae. The Saturniids are found around the world, particularly in tropical and sub-tropical regions. This rock-star specimen however, was photographed in Switzerland. Saturniids are actually a well-photographed Family of moths. The larval form (caterpillar) of many Saturniid species are equally as vibrant and interesting as the unidentified specimen that travelled around the world of social media last week. (Source)
Matt Lyzt on Inoreader
MattalystI'm tentatively optimistic. Better UI, and so far the feature set seems good.
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New NSFW Trailer for HARDCORE Gives Audiences the Ultimate First Person POV
MattalystOk, I am intrigued...
Almost a year ago, our own Dan Casey reported about an Indiegogo campaign for Hardcore, an action movie told 100% from the hero’s point of view. Not only was the movie fully funded, the movie was fully made! Above is the first trailer, and like the first person shooter video games that have inspired it, the movie looks intense.
From the synopsis, we are taken on the film’s journey through the eyes of Henry. He wakes up in a lab with no memory. His wife is there to tell him his name, and that he is now a cyborg.
A few moments later she is kidnapped by the movie’s villain, Akan. Oh, and he also owns his own army and has telekinesis. Henry must now use his new cybernetic abilities to traverse the city of Moscow, Russia, in an effort to get her back. The only person that doesn’t want to kill Henry is Jimmy, played by Sharlto Copley, and even he seems to be on the shady side.
If you are a fan of FPS video games, this movie will quickly become one of your favorites. Even if you are more Lego Batman than Call of Duty, the movie’s visuals are not ones we usually see in a film, are are definitely worth checking out.
Hardcore, produced by Timur Bekmambetov and directed by Ilya Naishuller, had its world premiere at the Toronto International Film Festival.
So what do you think? Is the world ready for an FPS movie? Will it be the same without 13-year-old kids swearing at you through your headset every 2 seconds? Let me know on Twitter or sound off in the comments below.
—
HT: Collider
IMAGE: Hardcore Movie
Burning Man's public Fleshlight
Some funny stuff from this year's burn.
If that's too risque for you, how about a community tongue-scraper?
Here's the rest of my Burning Man 2015 pix, including the gorgeous security cameras of the trash-fence.
Humans aren’t so special after all: The fuzzy evolutionary boundaries of Homo sapiens
Ever since Darwin, the researchers who study human evolution have been preoccupied with the characteristics that set humans apart from the other great apes: our large brains, bipedalism, hunting, abstract thought, and the use of technology.
It’s long been assumed that these features came bundled together, according to William Kimbel, Director of Arizona State University’s Institute of Human Origins. Kimbel conducts fieldwork studies in East Africa in search of the origins of our species, and he thinks that shedding the assumption of the “package deal” can open up new clues about the origin of our lineage.
Without the benefit of a fossil record, it’s reasonable to think that that these features evolved in tandem, but “it’s a model that remains firmly entrenched in paleoanthropology today,” Kimbel told Ars Technica—even though a picture is starting to emerge that looks very different.
Sheldon Adelson Is Ready to Buy the Presidency
In a few weeks, when the nuclear deal Barack Obama negotiated with Iran comes before Congress, it’s all but certain that not a single Republican will vote in support of it. With the possible exception of Maine’s Susan Collins, who has yet to reveal her position, each of the 246 ... More »
andrewmaclean: FINAL ORDER CUTOFF for Rick and Morty #6 from...
FINAL ORDER CUTOFF for Rick and Morty #6 from Oni Press is on Monday.
I drew the interiors but if you would like my cover too this is the order code: JUL151484
It was a ton of fun so I hope you check it out. Thanks. -A
Cryptographers Brace For Quantum Revolution
Read more of this story at Slashdot.
Woman Removes Blindfold, Discovers Her Boyfriend Is Actually a Woman in a Swimsuit and a Strap On
25-year-old Gayle Newland of Willaston, Cheshire is on trial in the UK for five counts of sexual assault against her female friend—according to the alleged victim, Newland pretended to be a Filipino-Latino man named Kye Fortune, developed a relationship with the woman over the internet and on the phone, and later had sex with her on several occasions with a prosthetic penis while the woman was blindfolded.
oldmanyellsatcloud: neurosciencenews: Reversing Animal...
Reversing Animal Behavior Through Synaptic Engineering
Researchers at the University of Massachusetts Medical School are the first to show that it’s possible to reverse the behavior of an animal by flipping a switch in neuronal communication.
The research is in PLOS Biology. (full open access)
Research: “A Change in the Ion Selectivity of Ligand-Gated Ion Channels Provides a Mechanism to Switch Behavior” by Jennifer K. Pirri, Diego Rayes, and Mark J. Alkemain PLOS Biology doi:10.1371/journal.pbio.1002238
Image: Neurons communicate with each other through excitatory and inhibitory synapses that turn neurons on or off, respectively. Image is for illustrative purposes only. Credit: Curtis Neveu.
Yeah, this one made me do a double-take. Nematode neural mapping of a very specific anti-predation adaptation. But the proof of concepts for both neural network stability and total reversal of the connected behavior is pretty surprising. ‘Simple’ nerve work, but still impressive.
German Homeopaths Accidentally Get High as Balls as Conference Ends in Chaos
Mattalystololololol, so homeopathy finally worked...
A homeopathy conference in Germany ended regrettably early when 29 people accidentally took “an LSD-like drug” called Aquarust and had to be rushed to the hospital, according to reports. The homeopaths were rescued after they were seen rolling around in a field near their hotel, gibbering incoherently.
padnick: libutron: Black Orchid - Fredclarkeara Black Lace...
Black Orchid - Fredclarkeara Black Lace ‘Baker’s Dark Angel’
In nature, black flowers are rare. The reality is that there is almost no plant in the world that is truly black in color. Most are shades of deep blue or reds or purples. This is also true about orchid flowers. Growers and hybridizers have tried many different orchid plants and hybrid orchid varieties to try to get to a truly black flower.
Among the most notable hybrids (since 2010) with truly black flowers (currently commercially available from Sunset Valley Orchids) you can find Fredclarkeara (Asparagales - Orchidaceae), an intergeneric hybrid between the orchid genera Catasetum, Clowesia and Mormodes. (Ctsm. x Cl. x Morm.).
The Fredclarkeara breeding produces flowers that are fragrant, have lots of color and are long lasting. As you can see on this one in the photo, the Fredclarkeara Black Lace ‘Baker’s Dark Angel’ is indeed black.
Photo credit: ©Brent Baker | Locality: cultivated (2013)
Black spider bat flower.