Trademark Law (Once Again) Getting In The Way Of Fan Art

from the time-to-embrace-free-licenses dept

Rose M. Welch points us to this recent News.com story about how the popular homemade crafts website Etsy has had to balance trademark issues, since many people like to make “fan art” and often would like to sell it on the site. In some ways, it appears to be the same sort of thing that many content creators went through with people creating fan fiction or other forms of fan art online, complicated (of course) by the fact that Etsy is used to sell these goods. The overall article is about what you’d expect.

However, I did want to take issue with one part of the article, which repeats the (oft-repeated) claim that trademark holders have to block such uses of their work. That’s not quite true, and it’s annoying that it gets repeated as fact all the time. Rights holders do have to protect unauthorized uses of their work that are likely to confuse, but don’t have to protect in cases where there wouldn’t be any confusion at all. Separately, (and this is the part that most often gets ignored) if they come across an unauthorized use, they absolutely can issue a free license to make it authorized — and thus, not risk “losing” the trademark. However, very few brands do this, in part because of the myth that they absolutely must stop all unauthorized uses. There are other options, and granting a license is a good one.

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Companies: etsy

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Comments on “Trademark Law (Once Again) Getting In The Way Of Fan Art”

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18 Comments
Josh Taylor says:

Illegalize fanworks in protection of trademark

One of these days, Media companies like Viacom, Viz, Shin-Ei, Toei, TV Tokyo, Bandai and the original authors of their work will change their mind by filing a DMCA against sites who host fan works that infringes the author’s original work.

If Trademark law gets in the way of fan works, then two things have to happen: DeviantArt will have to remove the Fan Art category and ban everyone who uploaded fan works of a book, TV show, Anime, Cartoon, etc, Fanfiction Dot Net and MediaMiner Dot Org will shut down.

Guess how many DeviantArt accounts will be suspended for uploaded fan works that infringes an author’s original work? I can tell you there will be millions of accounts that’s going to get shut down.

Phatnobody (profile) says:

Re: Illegalize fanworks in protection of trademark

Not sure about this, it sounds a little alarmist. There is no doubt that companies don’t *have* to stamp on every use of their trademarked property.

What is not called out is that this behaviour is really nothing to do with misunderstanding the law but is very much to do with protecting the commercial agreements (and hence the profits) they already have in place.

The way a lot of companies react to fan-made products is different to the way they react to fan art. Fan-made products are perceived (note I said *perceived*) to be competing with officially approved products and I wonder how often the commercial agreements for merchandising include a clause about protecting that monopoly.

In short, I suspect that they don’t misunderstand trademark law, they deliberately wield it against commercially available fan-made products to maintain high-value contracts with merchandisers.

TtfnJohn (profile) says:

Re: Re: Illegalize fanworks in protection of trademark

They’re over reacting but that doesn’t seem to enter into things any.

Fan art is in many ways either an homage or a satire of the original. Either way, strikes me it’s free publicity that doesn’t interfere with the official stuff in any way. You see it’s not all made of cheap plastic, made in China and something most people end up giving to the dog as a chew toy or the cat as something to toss around and chase.

Incidentally, I was floored last night when, for fun, I searched on Vampirella and got overloaded with the returns, images, videos and just about anything else. I’m of the age where most retailers sold it in one of those plastic bags with the white opaque front and back sides and now this silly thing is mainstream. The current publisher, Harris, doesn’t seem to be able to print new magazines fast enough to satisfy the demands.

And what drove it all these years? Fan art, satire and fan dedication. It’s one illustration that maybe the oft discussed “artist” need not zealously protect copyright and trade mark to get by but just keep creating what people obviously want.

BearGriz72 (profile) says:

Re: (Idiot AC?)

Who cares about fan art? Why does it need protection? It’s mostly all junk and literally all unofficial.

/FacePalm
Are You F#&%*n Kidding Me???

OK to name a Big One that is absolutely officially supported…

Blizzard Entertainment, You know Warcraft, Starcraft, & Diablo. Is a HUGE supporter of Fan Art.

If you want more than that … Then LMGTFY

Anonymous Coward says:

I think this posting is a little too facile regarding “policing” trademark uses.

It’s true that a trademark owner doesn’t *have* to stop everyone from using any remotely similar trademark. But it is a sliding scale, and distinguishing between those likely to cause confusion and those that are not is (a) not easy, and (b) not an opinion that is likely to be shared by the next guy that is using something close to the mark in question. In other words, if a trademark owner thinks the use of TRADEMAARCK on somewhat similar products is fine, and does nothing, the next guy who uses TRADEMARCK on the same products will point to that and say his use is no big deal.

Also, a trademark owner can’t simply grant a free license willy-nilly and resolve the problem. Trademark licensors must ensure the quality of the licensed good/service or risk losing their trademark rights. So there’s some work and/or risk that goes along with granting such licenses.

Anonymous Coward says:

“but don’t have to protect in cases where there wouldn’t be any confusion at all.”

In what situation do you give as an example where use of a a Mark isn’t ultimately confusing or even a slight risk of confusion?

Remember, we’re dealing with a public that falls for the most obvious phishing scams daily now, the bar is pretty low.

Anonymous Coward says:

Re: Re:

Remember, we’re dealing with a public that falls for the most obvious phishing scams daily now, the bar is pretty low.

Just because some people are sheep is no reason to enshrine that in law. No matter how draconian, detailed or nit-picky you make laws you will never, ever manage to stop people being morons. So why try?

marak (profile) says:

Re: Fun fact...

Id expand upon your point Transbot9 and say that all fanart(to some degree, even the badly made) acts as a free advertisement. Hell goto any deviantart page, you have a fairly good chance of seeing something thats “fanart” based, and generally of something you’ve never seen before.

If it looks interesting wouldnt you want to look up more information?

Transbot9 (user link) says:

Re: Fun fact...

Pretty much. And corporations tolerate it all the time. Occasionally there is a huff about someone selling something, but it’s rare. Most of the hoopla is usually a third party out to protect itself.

In fact, the only time I’ve heard of any content creator really getting wiigii about fan-products are novel authors, especially established authors with a lifetime of work. Novelists seem to be a little closer to their work, though. Artists usually like to see other interpretations of their work, so there is also a different mindset/culture.

John William Nelson (profile) says:

Trademark licensing isn't like copyright or patent licensing

People often don’t get that Trademarks are very different from copyrights or patents.

Trademarks are used as source identifiers. Their purpose is to communicate to consumers the source of the product or service they are receiving.

The secondary purpose is protecting a trademark holder’s goodwill in its name or product names.

Granting licenses to trademarks creates a problem in sourcing. Overly broad trademark licenses can void the mark’s protection.

This is because the mark’s holder is no longer the source for the product. No longer being the source means you no longer can ensure the quality and nature of the product. This voids, in essence, the source-identifier purpose of trademark rights.

This is not to say you cannot license a trademark for use by others. It is to say, rather, that these licenses must be carefully entered into.

As people have become more and more confused over trademark law, copyright law, and patent law, legislation and decisions have begun to whittle away at the primacy of source-identification as trademark’s purpose, but it is still the main reason trademark law exists.

A simple example of its purpose is the Lanham Act. The Lanham Act is the main body of law governing federal trademark rights; and it is a law governing unfair competition.

One question is whether all of the products allegedly infringing trademark truly do so. I imagine many do not. But, then again, who wants to pay $10k+ in litigation costs to find out if they’re a small business?

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