from the it's-not-about-control dept
Reader aster points us to a tested.com video in which Adam Savage talks about copyright issues. I’ve seen Savage mention on Twitter in the past that he’s a closet copyright geek who is very interested in copyright policy, and the conversation is definitely interesting, focusing on the high profile cease and desist letter that Fox sent over Jayne hats. The frustrating thing to me, in watching this, is that the conversation jumps back and forth between copyright and trademark without clarification. In fact, they’re almost entirely talking about trademark, while saying they’re talking about copyright. Frustratingly, they suggest that you have to enforce copyright to keep it, which is simply not true. What they mean is that for trademark — not copyright — you have to make some effort to prevent confusion or your mark becoming generic if you want to keep that mark (though this has nothing to do with copyright). You can see the segment below, though the main discussion starts up around the 7:30 mark:
There’s this construct within large corporations, which is ‘we control our brand!’ And the moment anyone does anything unauthorized with it, we need to shut that down. Because brand control is paramount.
To counter this, he uses the example of Lucasfilm which has generally been supportive of fan-art and fan creations, saying that they really only get involved when significant profits are being made. Of course, that’s not entirely true. We’ve seen a few cases where Lucasfilm and its lawyers go a little overboard with threats, but the general point makes sense.
To me the lesson is that you can’t ever leave the interpretation of fair use to the corporations.
Oddly, the host of the show says that it’s too late for that, though that’s completely wrong, too. Companies don’t get to define fair use. It’s still in the law and determined by courts. It may not be clear enough, but it’s certainly not determined by the copyright (or trademark) holders. The host also (again, oddly) claims that fair use is mostly based on a court case from 1982 (which one?!?) and that people fear to test it. While it is true that there is some fear over bringing fair use to the courts (it’s expensive and still arbitrary), there have been an awful lot of fair use cases that have gone through the courts in recent years including some key victories in recent cases that have stood strongly in favor of fair use.
But then Savage makes the key point: which is that companies need to realize that fans doing stuff in support of their brand can be a really good thing:
The other thing is to make a qualifiable assessment of what the best business practices for them are. In so many corporations you end up with this battle between the PR department — who really does understand how to reach out to the fans and put everyone under a nice umbrella — and the legal department which wants nothing to do with them… and is somehow anti-the fans…. So wake up legal departments. We know that you guys work hard and are smart people. But you need to understand a little bit more about this before you send these nastygrams.
He also compares the whole thing to the Streisand Effect, and suggests that he’s going to go on Etsy to buy an “illegal” Jayne hat.