January 28, 2025 • 71 mins
Join us on an enlightening journey with Professor Marc H. Greenberg, the esteemed author of "Fandom and the Law," as we unravel the complex tapestry of fan-created content and its intricate dance with intellectual property law.
Discover how fans’ passion for media manifests in fan fiction, art, films, and cosplay, often blurring the lines between amateur and professional pursuits. With Professor Greenberg's expertise, we navigate the labyrinth of legal boundaries and explore how these creative endeavors can open doors to professional opportunities within the industry.
Get ready to discover how fan creators bravely navigate the legal landscape through concepts like nominative fair use. Together, we'll delve into the evolving relationship between passionate fans and the original creators they admire, exploring how fan suggestions can be beautifully woven into official works. This journey raises thought-provoking questions about intellectual property and the powerful influence of fandom.
Journey through the challenges posed by legal guidelines, like those from Paramount for Star Trek fan films, and understand the importance of staying informed about fair use law and its transformative doctrine.
As we venture into the future, we tackle the transformative role of generative AI in creative fandom, highlighting both its potential and challenges. From ethical considerations and legal battles surrounding AI-generated content to the impact of deepfakes, this episode ensures you're at the forefront of understanding the digital age’s impact on fan creativity.
Hear insights on safeguarding intellectual property, the pivotal role of legal counsel, and the strategic maneuvers creators must adopt to protect their rights in a world where AI’s influence is ever-expanding.
Join us for this essential dialogue on the intersection of fandom, creativity, law, and technology.
Mark as Played
Transcript
Episode Transcript
Available transcripts are automatically generated. Complete accuracy is not guaranteed.
Speaker 1 (00:00):
Fair use says it's OK to take somebody else's work
under limited circumstances anduse it without compensation or
without permission.
Speaker 2 (00:15):
You are listening to Intangiblia, the podcast of
intangible law plain talk aboutintellectual property.
Please welcome your host,leticia Caminero talk about
intellectual property.
Speaker 3 (00:27):
Please welcome your host, leticia Caminero.
When we love something, weusually want to express it to
the world.
We want to empathize it.
We want to find ways ofcommunicating this love that we
have.
This is the root of fan-createdcontent.
You create art, you createfilms, you create products and
you want to share them with theworld.
(00:48):
However, there are someintellectual property
considerations that you need tokeep in mind if you want to be
part of this fan created contentworld and also if you want to
create a business out of it.
Let's hear what Professor Markhas to say about it.
Speaker 1 (01:12):
My name is Mark Greenberg.
I'm a professor of law atGolden Gate University School of
Law in San Francisco.
I am in the process of becominga professor emeritus, which
means that I will be a retiredlaw professor.
In addition, I have been amember of the California State
Bar, acting as an attorney inCalifornia in the US since 1979.
(01:37):
So I have fairly extensiveexperience both as an attorney
and as a law professor.
I'm a native-born American, atthe age of 71.
Speaker 3 (01:52):
Great.
So the way that I learned aboutyou, about your great profile,
about your great contributionsto the IP world, was thanks to
your book Fandom and the Law, aguide to fan fiction, art, film
and cosplay.
So first let's establish whatis fan fathom or fan fiction,
(02:17):
and then we can go from there tostart talking about the rights
attached to those.
Speaker 1 (02:22):
Right, fandom is a phrase that has been defined in
a variety of different ways, butprimarily what it refers to in
the context of the book that Iwrote is those things which are
created by fans, that are new,original works of art or other
(02:43):
forms of creation which arecreated based on pre-existing
material.
So if you are a fan of aparticular television show, you
might write a story for thattelevision show's characters and
universe, or you might paint apicture of the characters or
scenes in that book ortelevision show.
(03:07):
One of the key elements offandom is therefore is to refer
to the material as fan created.
So this is created by fans.
A key element of fandomcreations is that these are
amateur works.
These are not that.
Once you start talking aboutworks being done by creators,
(03:29):
that that are in the public eye,that are publicly available,
then you're talking aboutprofessional work.
But the amateur work which isavailable for people is usually
available on a nonprofit basis.
It's for free.
Most of it is on the internetthese days, and so that would be
kind of what we're talkingabout with fandom in my book,
(03:52):
pertaining to four areas of fancreation Fan fiction, which is
literary works done by fansabout things that they're fans
of.
So you have, for example, starTrek romances between Kirk and
Spock.
That's a kind of fandom that wesee.
And in addition to fan fiction,there is fan art, which is
(04:16):
based on artistic works thatfans do based on their favorite
elements of fandom.
So if they're fans of Wolverinefrom Marvel Comics, they may do
art depicting Wolverine, and sothat's fan art.
(04:36):
Fan film is a more complex formof fan creation because it
involves creating an entiremovie.
So that involves both theliterary work and graphics and
design and sound recording andsets and building all of this.
(04:58):
Some fans get so excited aboutthe things that they are excited
about as fans that theyactually go out and make movies
based on the same fandom thatothers are writing stories or
doing art on and expensesassociated.
(05:21):
But as filmmaking has becomeeasier with digital tools, we
are starting to see more fanfilms as well.
And then the last area that Iincluded in the fan creation
area is cosplay, which is shortfor costume play, and basically
this is something that you seeparodied and made fun of in
(05:46):
popular media.
Oh, people coming to theconventions comic conventions
like San Diego Comic-Con wearingoutfits, wearing costumes, and
that they think of as cosplay.
That's really the entry level.
Cosplay has become such aserious consideration and
(06:08):
activity that there are somepeople who spend thousands of
hours building elaboratecostumes and makeup and they
compete in competitions atconventions where they can win
prizes of up to $25,000, $30,000in cash and, more importantly,
what they're competing for is anopportunity to have their
(06:31):
cosplay viewed by Hollywoodproducers and Hollywood makeup
artists and set designers andthey can get hired.
So cosplay is a path towardsgetting hired professionally as
a costumer or makeup artist, andso that's been an interesting
(06:53):
and another controversial areaof fan creation.
Speaker 3 (06:57):
Like an audition in itself.
Speaker 1 (06:59):
Yes, yes, At the conventions and I talk about
this a lot in my book at theconventions for the fan artists,
they can meet.
So let's say, you're a fan ofthe DC Comics world and you like
Wonder Woman.
I love her.
So you've been drawing WonderWoman as a fan and doing fan art
(07:20):
.
You can go to a comic bookconvention and sit down with an
artist from dc comics and showyour work and, if they like,
it's called portfolio review.
If they'd like the work, youmight get a job working for your
, for the company that you're.
Speaker 3 (07:38):
You're so, uh, such a fan of so your dream job, you
can get your dream jobabsolutely Absolutely.
If you're good enough and you,you're in the in the right, in
the right place, because youhave to meet with the right
person, of course, right, youcan get your dream job.
Wow.
Speaker 1 (07:54):
Yes, you can get that opportunity, and so it's
interesting because in fancreated works, in that universe
of fan created works, there tendto be two paths.
Some people get into fan-createdworks because they aspire to
work professionally in thatfield and they see it as an
entry path.
Other people do it purely forthe joy of it, and those are the
(08:17):
amateur artists.
They don't want to make anymoney on it.
They're excited if somebodyreads their work.
They're excited to be a part ofan art community of writers and
others who are interested inthe work, that they can exchange
ideas and stories.
They can go to conventions andmeet with fellow fan artists.
Those are folks who are not init for a financial reason at all
(08:39):
.
Their desire is purely for thecommunity and to be a
(09:00):
participant in that community,which is interesting because it
means that for Hollywood, youcan't get them to behave in ways
you might like them to byoffering them the prospects of
career or money, because they'renot interested in that and so
they will.
They will vigorously defendtheir, their right to create
based on your work as a?
Uh, something allowed undercopyright law or and under
trademark law, uh, and they'renot looking to get financial
compensation.
Speaker 3 (09:17):
They're just looking to be part of a community and
for a recognition for theirskill okay, so so, now that you
mentioned the law, so let's talkabout the intersection of IP in
this universe of fan-createdcontent and how you can see it
(09:40):
from both sides.
So from the side that you wouldlike to have recognition for
the work that you do in Fathom,or has the honor of the content,
that you would like to protector limit what is created in
these forums.
Speaker 1 (10:01):
This is a great question.
This is a very interesting partof the world of fandom.
Is this tension that existsbetween intellectual property
law and the desires of fans tocreate fan-created works based
on pre-existing works?
(10:21):
On pre-existing works?
Copyright law is probably thelaw that has the biggest role to
play in the fandom world.
Trademark also has a role, butit's a lot lower in complexity,
I would say.
And for the fan creator,copyright's really a two-edged
(10:44):
sword because, on the one hand,it protects the rights of the
first or original creator whodid the work your fan work is
based on.
Those folks have rights.
If you infringe their copyright, you could get sued and be
(11:04):
forced to pay damages or give upyour work.
On the other hand, the workthat you create as a fan to the
extent you have createdsomething new or added something
to the pre-existing canon thatmay exist about that work that
belongs to you canon that mayexist about that work that
(11:25):
belongs to you you havecopyright in your original work.
But to the extent you'rebuilding off of someone else's
work, you may or may not beinfringing because there's a
legal doctrine called fair useand fair use is the key legal
doctrine in fandom and fair useis the key legal doctrine in
(11:46):
fandom.
Fair use says it's okay to takesomebody else's work under
limited circumstances and use itwithout compensation or without
permission.
There are circumstances inwhich you can make that kind of
use.
Now, one of the best examplesof that that I use is criticism
(12:09):
and comment about artwork.
Fair use gives you the right todo that.
Because fair use says if youtake a relatively small portion
of someone's work and you use itfor criticism or comment and
you're not affecting the marketvalue of that work and you've
taken a reasonable proportion ofit, then that is not an
(12:32):
infringement to the copyright.
That's a huge right and at theheart of all fandom is work
based on someone else's work.
So if you didn't have fair use,there'd be no fandom.
So fair use is really criticalin the law and it applies both
(12:54):
to copyright law and also, in adifferent way, to trademark law.
How so?
Speaker 3 (13:00):
Sorry, how so in trademark?
How so, how so in trademark?
Speaker 1 (13:04):
Well, it's interesting because, first off,
you have to step back and saywhat is a trademark?
A trademark is a brand.
It's a brand name.
It's how we know and identifysomething.
So, for example, some years ago, before I got wisdom about this
(13:27):
, I used to drink Diet Coke likecrazy.
I used to drink a case of DietCoke every other day or so.
I drank a lot of that stuff.
It's pretty awful stuff, but ithas a very distinctive taste
and flavor.
When I look at a bottle, at acan let's say a soda can of Diet
Coke on a shelf, I don't knowwhat's inside that can.
I can't see it.
(13:48):
It's covered in the can.
So when I buy it, I'm buying itwith the trust that, because
I've bought this before andbecause I know this brand, I
know what to expect.
If I opened that can and Ipoured it into a glass and it
was orange or green, I knowwhat's wrong.
(14:12):
Something was wrong becauseCoca-Cola isn't that color.
I have this knowledge of thebrand.
That's the value of brands andtrademark.
Now, you use brand names toidentify your goods or services
and that's the value of atrademark.
So the purpose of that mark isto identify the goods and
(14:35):
services.
If you, as a fan creator, wantto use a reference to Coca-Cola,
you're not using it to identifythe brand or to sell the
product.
You're using it for a differentpurpose, for criticism or
comment or maybe to poke fun.
(14:55):
Those are called nominativeuses and it's a term that then
gets applied to fair use andcombined.
And so we say in trademark lawyou can make a nominative fair
use and that is a use that isnot the kind of use you would
(15:17):
make if you were claiming thetrademark in the work.
And so for that reason, someoneseeing your article where you
talk about you know about thedecline of Western civilization
has been led by Diet Coke.
They know you're not talkingabout the brand You're not
referring to.
(15:37):
You're not trying to passyourself off as Coca-Cola
company or as a dealer ofCoca-Cola.
You're making a fair usecomment.
And so again for fans.
When fans want to usetrademarked brands in their fan
creations, if they keep it tothe nominative fair use so it
(15:57):
doesn't look like they're tryingto impersonate that brand or
create confusion about thesource of the brand, then under
trademark law you have a defense, the defense of nominative fair
use.
Does that make sense?
Speaker 3 (16:13):
yes, it makes perfect sense.
So it's.
It's, it's the the way that yougo about it.
So it's not.
You're not um deceiving thepublic.
You're not passing as the brandor has the all the products as
if they were legitimate from thebrand.
Um, it comes to mind whenyou're talking about this um, I
(16:36):
don't know if you have seenthere's a lot of um fan created
content, fan-created content,well, fan-created product of uh
shoes, especially of uh sneakers.
Uh, they, they, they buy the,the sneakers from the brand and
then they make something amazingout of it, completely unrelated
to the brand, but they keep it.
(16:57):
But they keep the identifiersin the shoes so that if it's
nike, adidas, jordan and soforth, uh, so this is a bit of a
gray area in this.
Speaker 1 (17:07):
Yes, it is.
Speaker 3 (17:08):
Because you're not claiming that this comes from
the brand, but people doidentify it as a product from
that brand and it can bedeceitful in a way be deceitful
(17:30):
in a way.
Speaker 1 (17:30):
It is that's a difficult case that you identify
, because what's happened thereis that the additional
contribution you've made alsoadds value, and so it becomes
more of a challenge to separateout those values and the creator
who has added something ofvalue and then has enhanced the
(17:51):
value of the work.
The interesting thing is that insome limited instances in IP
law we've seen this happen,where the holder or creator of
the original work accepts thenew changes and adopts them and
incorporates them into theirwork, and so this is another
(18:14):
interesting element in fandom,and we've started to see this in
ongoing or continuing series ofwork.
So, let's say, a television showthat's an episodic series,
television shows that aremultiple episodes, a book series
or a comic book series, agraphic novel series, where we
have multiple volumes of thework.
(18:37):
When you have that situationand fans develop who are
followers of the work, whatwe've started to see in the last
oh, I don't know 30 or 40 yearsin particular is a rise of fans
communicating directly with theproduction company and offering
(18:58):
suggestions, suggesting newcharacters, suggesting new plot
directions, suggestingfan-created twists to the
programming, and the productioncompanies take these on and,
because they've got a rabid fanbase, they want to reinforce
(19:23):
that base and support it, and sooftentimes I've seen this
happen, where people makesuggestions from the audience at
a convention and it shows upsix months later on the screen
Because somebody in thatproduction team heard that
suggestion.
That's a good idea.
We should do that idea.
(19:46):
We should do that.
Speaker 3 (19:47):
And so it's fascinating because what it what
this has led to is a blurringof the lines between the amateur
fan and the professional andalso you see that in in video
games as well, that they um,they have these uh sandboxes in
video games sometimes, thatpeople can create anything that
(20:08):
they want and then from theymake new versions of the game
and they incorporate, uh, thiscreation, either a world
building or some characterbuilding or some even the story,
so it's very much shapes theoriginal content into something
else.
But it's amazing in a way.
(20:31):
But it's also it could betricky, because if you're, do
you have the right to use it,even if it's created in your
game, is created in your um, thein your work that you, that you
made, do you have the right tojust take it and use it, or do
you need to go to thatparticular uh fan creator and
(20:54):
ask for permission?
Speaker 1 (20:56):
It's fascinating as a problem, because what we tend
to see is situations wheresomebody has decided to do a fan
created work and they startbuilding that work and the level
(21:17):
of complexity gets to such adegree that the prospects for
infringement are just too high.
And it's been very interestingto see how motion picture and
television studios haveresponded to fan works, to fan
creations.
One of the interesting sort ofside approaches that I thought
(21:45):
was a very creative one.
Paramount Pictures some yearsago filed a lawsuit against a
fan film company that had done afan film called the Battle of
Axanar, which is about the StarTrek world, and what they did is
(22:05):
they took from the famouscharacter in the first series of
Star Trek.
They took Captain Kirk, as itmakes a reference in one of the
early episodes to how a famousKlingon colonel did well in the
Battle of Axanar, and that's it.
It's just a throwaway line.
If you know the Sherlock Holmesstories, he makes reference in
(22:29):
one of the stories to theadventure of the giant rats of
Sumatra, and they never actuallydid a story of the giant rat of
Sumatra, it was just athrowaway line.
So the Battle of Axanar was athrowaway line in the first Star
Trek series.
This group of fans decided theywould make a fan film of the
Battle of Axanar.
So they did and they made likea 40-minute film and they got
(22:53):
sued by Paramount big time forcopyright infringement and
violation of a million differentIP laws.
What came out of it wassomething very interesting.
Paramount developed a set ofrules, guidelines.
They called them to say ifyou'd like to make fan films
(23:13):
based on the Star Trek universe,here are the rules.
If you do it this way, youwon't get sued.
You can't use the name of anyof the like, you can't say the
Federation or use any of thenames of our characters.
You can't indicate that we'responsoring or approving this, it
(23:35):
can't be longer than 30 minutesand it can't be for profit.
And then, as you're goingthrough this list, then you
start to see and you can'tdefame any characters and you
can't have characters sayinganything inconsistent with a
character's typical statementsand they start moderating
(23:56):
content.
Initially, it's all you know.
You can't use our brand andthings like that.
That all makes sense.
But then they start veeringinto their controlling content.
Now you can go ahead and dowhatever you want.
You don't have to follow theirrules.
But if you follow their rules,you won't get sued, and if you
don't, you might.
Isn't that an interesting wayin which they are trying to
(24:20):
shape the way in which fandomand fan creators work with their
material, and we're starting tosee this quote guidelines
approach show up with a varietyof different creators issuing
guidelines on how you can createfan works based on their work.
Speaker 3 (24:38):
But it's a very narrow narrow, narrow, right.
Speaker 1 (24:45):
That's exactly right.
They're putting you into anarrow lane, making absolutely
sure it will not damage theirbrand.
Speaker 3 (24:52):
Yeah, but then where is the creativity license?
Gone License, yeah, gone.
Speaker 1 (25:00):
And it makes it even harder to be that creative,
because you know that you'rerunning a risk, because they've
told you that if you violatethese norms, these guidelines,
they're coming after you.
Speaker 3 (25:14):
Yeah, and then it actually it harms the fun,
because the fun is, uh, you cansee it from their perspective,
like I'm, I'm just trying tohonor the work, I'm trying to
further in, um, get myselfinside this beautiful universe
that I enjoy.
So I just want to dream aboutit and create about it.
(25:37):
So it's yeah, from the fanperspective, it's like you're
mutilating my art.
Speaker 1 (25:42):
I saw this as a very negative development in fandom.
Uh, this, this business ofcoming up with guidelines, um,
because it contributes to theatmosphere of fear yeah, exactly
, exactly and fear killscreativity yeah, the.
Speaker 3 (26:01):
And the moment you tell them everything that they
cannot do is like yeah, but whatcan I?
What you're telling me that I'mallowed to do?
I don't want to do it right,right, right.
It's an artificial constraintexactly so uh, apart from from
these guidelines, what otherlegal considerations uh should
(26:22):
fund uh creators, fund contentcreators should uh keep in mind
regarding not ip and regardingspecifically trademark?
Speaker 1 (26:31):
well, it's one of the areas that has been a lot very
controversial in the world offandom has to do with this topic
.
We've mentioned before thisconcept of fair use, um, and the
definition of fair use has beena constantly changing landscape
, and so this is something thatI encourage fan creators to pay
(26:53):
attention to is to find out whatthe latest cases are in the
area of fair use, so you canhave a sense of what you can or
cannot do.
There is a concept in fair uselaw that is called the
(27:14):
transformative doctrine, andwhat this means is that if you
have and let's say you take anoriginal copyrighted work, let's
say it's your story, it's the,it's the story of the first Star
Wars movie, that's, that's thework you're taking, ok, now,
(27:41):
okay, now, copyright law saysthat if you create a derivative
work, a work based on theoriginal work, you've now
created a derivative work.
So, let's say, you've taken abook and you made it into a
movie.
That's a derivative work.
It's a work derived from theoriginal work, but different.
Okay, that's a derivative work.
And the creator of thecopyrighted work the person who
created the original work.
They also own the right tocreate derivative works based on
(28:06):
their original.
Sometimes they do that by.
Let's say, if I wrote Star Warsthe first episode, then I
create this volume two as aderivative work based on volume
one's universe.
Okay, so that's how you can dothat.
(28:27):
What this transformativedoctrine says is if you create
your work based on someoneelse's original work and you add
new elements, we will say thatyou have transformed the work.
And if you've transformed thework by adding new elements, we
(28:51):
will say that that is not acopyright infringement.
You can have a copyright inyour newly created work and you
won't get sued for the previouswork you took from because
you've transformed it.
That's the transformative test.
Now it's a four-part test.
It requires four differentelements that have to be
(29:13):
analyzed, have to be analyzed.
Courts have been all over themap trying to figure out what is
or is not a transformative work.
Some courts have looked at somethings and said, yes, this is
clearly transformative.
Others have said, no, it's not.
And so there was a series ofdifferent cases that came down
(29:39):
and I discuss all of these indetail in my book.
A series of cases that camedown about the limits and the
scope of fair use.
Now, obviously, this is veryimportant for fan creations
because all of their creationsare derivative works.
They all start with somebodyelse's work and then they build
(30:01):
off of that.
That's the essence of afan-created work because it's a
fan, you're admiring of somebodyelse's work and you wish to use
it in your own new work.
If the transformative doctrineprotects you, you have a very
broad range of things you can do.
If it doesn't protect you,you're going to be infringing
(30:25):
people's work and you're goingto get sued for copyright
infringement.
So the scope of the fair uselaw is really critical to
understand in order toeffectively be a fan-based
creator.
But the law is shifting andchanging like the sands in the
desert and the Supreme Court hasrecently, in a case Goldsmith
(30:50):
versus the Andy Warhol estate,walked back the broad grant of
fair use rights they've given inthe past and they've pulled it
back and said no, we think somethings can be infringing that
particular case, the Goldsmithcase.
Lynn Goldsmith is a photographerof rock and roll artists.
(31:10):
She took a famous photo ofPrince when he was a young
artist and it ran in magazinesand she sold copies.
And Condé Nast came to AndyWarhol and said we want you to
create an original artwork tocommemorate I think it was like
(31:32):
the 10-year anniversary afterPrince had died.
After Prince had died, and soWarhol took Goldsmith's photo of
Prince and did his typicaltreatment multicolors and sort
of shadowing and so on and theyran that in the magazine.
But then what Goldsmith didn'tknow about because Goldsmith was
(31:55):
aware of this, he was okay withthat what she didn't know is
that Warhol did 10 otheriterations of this of the Prince
graphic and then, after Warholdied, the estate of Andy Warhol
was selling them for thousandsand thousands of dollars.
Goldsmith sued Warhol's estatesaid transformative fair use,
(32:25):
pretty, pretty straightforward.
I mean clearly warhol'streatment was not the same as
the photograph and what came outon the other end had new
expression that he'd added court, this time the court, the
supreme court.
They went probably the districtcourt and the court of appeals.
Both said warhol states right,this is, this is a
transformative fair use, noinfringement.
Us Supreme Court reversed.
They said we think this goestoo far.
(32:49):
We think that you haven't addedanything really new or original
.
The base of the work is stillthe original photographer's work
, lynn Goldsmith's work, andyou're using that without
permission or giving her anycompensation.
This is not a fair use.
Well, that threw the wholelegal arena into a dizzying spin
(33:13):
, because we now don't reallyknow just how far you go to have
to have a transformative fairuse or not.
It's very much up in the airand we are, as Indiana Jones
said years ago, making it up aswe go along.
(33:33):
We're still trying to figureout what the parameters of the
law should be.
So for fan creators, Iencourage you to be careful with
transformation doctrine anddon't just think it's okay.
You should definitely havecounsel review something if you
think that potentially it couldrun into a copyright
(33:55):
infringement problem.
Or if you're trying to rely onthe transformative defense, you
need somebody to analyze it,based on the latest cases.
Speaker 3 (34:04):
It has become a case by case kind of which is
something that is extremelynerve wracking.
When you are trying to knowwhich side of the law are you
going to be standing, especiallyif you don't want to.
If you don't want, you get toget yourself in trouble.
(34:24):
You, you want to, trying toavoid legal issues.
But is this, if there's noclear path and you don't know,
it depends on if I get sued ornot?
Speaker 1 (34:35):
well, it's.
It's a term I used years ago ina Law Review article I wrote.
It talked about the chillinguncertainty.
Speaker 3 (34:43):
I like that.
Speaker 1 (34:44):
And I think that's what happens here is that your
expressive desires, yourinterest in creating, is chilled
by the fear that you could getsued for what you create.
Speaker 3 (34:58):
Yeah, and even if you're trying to be careful, you
don't know how careful youshould be.
Speaker 1 (35:06):
That's really important.
It's very important tounderstand that, because
risk-taking is part of being anartist.
But you want to be informed, ofcourse.
You want informed risk-taking,and the kind of risk that comes
out of nowhere, where you had noidea that this could
(35:28):
potentially be a problem, isvery destabilizing.
Speaker 2 (35:36):
You are listening to Intangiblia, the podcast of
intangible law playing talkabout intellectual property.
Speaker 3 (35:44):
Now, we cannot talk about fandom without social
media, because it is theuniverse in which we all exist,
now, now, and this is whereeverything happens and
communities get created and workgets published, emphasized,
(36:15):
shared and so on.
So how does social mediaamplify the legal challenges and
make it even harder or better,according to how you see it, for
the creators and also for thebrands?
Speaker 1 (36:24):
Great question, and social media and the Internet in
general has both become hugelyvaluable in fandom.
If you want to write fanfiction, now there are thousands
of sites and millions of piecesof fan fiction that are
(36:47):
distributed on a regular basis,so there's a tremendous
availability and opportunity forpeople to work on various
platforms.
There's a platform calledArchive of Our Own, which is a
fan fiction platform.
They have thousands andthousands of young fan fiction
(37:08):
writers on that platform.
It's a safe platform, archiveof Our Own.
There's another one calledDeviantArt, which is a fan site
for artists.
A lot of fan art goes up onDeviantArt.
There are always a couple ofthings that I encourage fan
creators, fan-based creators, topay attention to.
(37:30):
One is the TCU, the Terms andConditions of Use, the TCU,
which governs all of thesedifferent websites.
So, for example, a popular siteto put up fan art is YouTube,
very popular.
The terms and conditions of usefor YouTube say anything that
(37:52):
you put up on YouTube belongs toYouTube.
They can take it, they can useit, they can modify it, they can
alter it, they can do whateverthey want with it.
You give up a certain level ofyour rights by virtue of these
terms and conditions of use.
So what?
I encourage anybody who is acreator who wants to upload
(38:12):
material to social media getinto their site, find out what
the terms and conditions of useare, or whatever else they want
to call it guidelines,regulations, submission
guidelines know what they can orcannot, what the site can or
cannot do with your content, andthis is a vital thing for
(38:34):
people who are creating contentto make sure that they know what
can can't be done with theircontent, and oftentimes they
don't realize that there aresome significant uh um
advantages that they're givingaway um, a long time ago, I
wrote an article about socialmedia and, uh, I read most of
(38:59):
the terms of uh back then and itwas uh, it was terrible.
Speaker 3 (39:05):
yes, everything that uh, and I remember that uh
linkedin I don't know if theychange it because it was many
years ago.
Linkedin had ideas.
Also, has uh something that youwere giving away by being a
user Right Ideas, right.
Speaker 1 (39:20):
They own your mind.
Speaker 3 (39:22):
Exactly, they own your mind.
Something that is not evenprotected cannot be protected
through IP, so they own it.
Speaker 1 (39:30):
They're doing it by contract.
Speaker 3 (39:31):
Exactly so, whatever thought you have using their
platform so according to theirterms, is theirs?
Yeah, so it's.
So according to their terms,it's theirs.
So it's very important to beinformed, especially if your
username has the channel ofmaking yourself known, making
your art known, making yourcontent known.
(39:52):
It's very, very important tounderstand where you're giving
up and where you're accepting,because it's a great tool for
you to get a platform.
Speaker 1 (40:09):
It's a great tool for you to publish your work, but
also you can be taken advantageof or you can be giving away
more than you would like wetalked before we started today
about the question of legalliteracy and the ability of
(40:31):
people to understand what thelaw provides and what their
rights are, and for far too manycreators, there is little
opportunity made available tothem to understand the legal
obligations and benefits thatthe law provides for them as
(40:52):
creators.
And far too often, if you thinkabout your daily life in this
contemporary digital world, onhow many days is somebody trying
to scam you, trying to get inand get your money, get your
assets, get control of somethingthat you own or have?
(41:15):
It is a predatory universe inthe online world and far too
often I find artists are tooinnocent about that and they
don't understand, they can'tbelieve how venal and awful some
folks can be in trying to gettheir creations away from them,
(41:42):
get their creations away fromthem, in trying to take their
work and not give themattribution or any compensation.
And so what I tell youngartists all the time is if you
want to make art for your familyand your friends and you don't
want it to go beyond that, youdon't need my services and you
don't want it to go beyond that,you don't need my services.
But if you want to get involvedin the selling of your art.
(42:05):
Now you're in business and ifyou're in business you need to
know the rules.
You need to know how thisbusiness is done, because if you
don't, you'll get takenadvantage of.
I used to teach a class calledLegal Aspects of the Music
Business and I taught thiscourse to musicians who had
(42:26):
never had any interaction withthe legal business, but they
wanted to get out to the musicbiz and I told them all of you,
right now, you are guppies.
A guppy is a little tiny fish.
I said all of you right now areguppies in the sea.
By the time we finish thiscourse, you will be minnows.
Minnows are about this big andI said and the sea is full of
(42:53):
sharks.
So when you're a guppy, youdon't know enough, you just get
eaten.
When you're a guppy, you don'tknow enough, you just get eaten.
When you're a minnow, you knowenough to maybe swim out of the
way.
That's about the best I can dofor you.
I can't change the leverage.
You won't have the leverage.
You're a young artist startingtheir big production company,
(43:14):
but at least you should knowwhat they can do and how they do
it and you should know how totry to protect yourself and,
frankly, the law provides forsome protection.
Copyright law and trademark lawdo provide protection for
creators If they know how thelaw works and they use it.
Speaker 3 (43:36):
I love that analogy.
I love that analogy.
I love that.
It's very much like I give youthe tools just enough for you to
defend for yourself and thenfind more tools that keep
growing, keep going up in the inthe chain.
That's it.
Speaker 1 (43:54):
The artists that I work with, many of, actually all
of the same.
That's it, uh, the artists thatI work with, many of, uh, uh,
actually all of the artists thatI work with these days have at
least 30 or 40 years ofexperience oh, wow they are
deeply experienced.
They're, all you know, in their60s, 70s.
They're still creating.
These artists.
No, they have been throughthrough all of the, the terrible
(44:16):
times and the predatory efforts, and so they've got a tough
skin and they work with me andtogether we protect their rights
.
But it's a constant battle andit is war, it is aggressive
battle.
It is aggressive battle.
Speaker 3 (44:47):
I have to stand on the podium and stomp my feet and
raise my voice and doeverything I can to use every
power I can to get my clientsfor their rights.
Also, it's very much aboutmaking your right known,
understanding your right andmaking it happen.
That's one of the things that alot of creators, entrepreneurs,
(45:08):
creative entrepreneurs alsodon't understand.
That the thing about IP ingeneral and very much, it's very
much of a right that you needto assert.
It's not going to come out ofthin air that oh OK, so this is
my right and they're going torecognize it.
(45:29):
No, you need to really assertyour right and make sure that is
that is being respected,because you you have to be
vigilant.
You have to pursue anyone who'sdoing unauthorized use,
pursuing anyone who's doinganything that is infringing your
rights, because if not, it'snot going to happen.
(45:51):
No one is going to pursue itfor you.
We do have some, of course,some sort of cases that it is
enforceable by the public meansand it has to be pursued
publicly, but it's not the greatmajority and it's not
(46:13):
necessarily going to happenwithout you being behind
necessarily going to happenwithout you being behind,
without you.
Speaker 1 (46:22):
You know you.
You earlier talked abouttalking to the client who gave
in.
This happens a lot becauseartists are have a lot of, and
creatives have a lot of fear.
Oh, I couldn't sue them.
How could I sue somebody?
Oh, they have all the money,they have all the power.
(46:42):
Oh, this is just how thingsalways are.
Yeah, the little guy alwaysgets screwed.
That's just life.
It requires to protect yourrights, a willingness not to
give in like that.
There are lots of sad caseslike the one that you talked
(47:09):
about, where lawyers getinvolved and they're actively
working to defend their client'srights and the client gets
nervous and caves in, accepts apoor deal, a poor deal,
withdraws their claim and somuch of what I do as the lawyer.
Remember I was talking aboutthe counseling function, a lot
of that.
I had this experience justrecently.
(47:29):
I had a client who had been ina terrible relationship with a
very manipulative fellow who wasserving as his manager, slash
lawyer, and we had to deal withlitigation.
We had to file a lawsuit to getrid of this guy, to get to
(47:53):
disentangle him from royalties.
He had his fingers in a lot ofmy clients' money and when we
filed a lawsuit, my client hadnever been involved in a lawsuit
before and I explained to himlisten, you need to understand
that in a lawsuit it's likebeing on a river cruise Some
days you're up, some days you'redown, and there will be ups and
(48:17):
downs throughout the process.
It was really helpful for me togive him that context, because
when we hit a bad patch, heunderstood.
I had told him oh, this is oneof those bad patch times, huh,
when you're going down, I said,yeah, we'll be up and it will be
doing well in a week or two.
And, sure enough, we were.
(48:38):
Clients need to understand thatthere is that rhythm that goes
on back and forth, that whenbecause standing up Takes a lot
of courage and takes money, ofcourse, I mean it's it's, it's a
sad reality that there are verylimited resources legal
(49:00):
resources available to creativesif they lack the ability to pay
legal fees.
Speaker 3 (49:05):
Yeah, that's the case that I was telling you about
before.
It was a very particular.
It was a very straightforwardcase.
It was such a clear violationwas a very straightforward case.
It was such a clear violation.
A book publisher took visualcontent without the
(49:27):
authorization of the visualartist.
There was no question aboutthat.
It was his work.
There was no question about theinfringement.
It was extremely clear.
And he talked to me, let's saytoday, and the next week he
(49:48):
called me again to say that healready signed and gave away his
right because he didn't want tofight them, because he thought
he didn't have he thoughthimself as not worthy of the
fight, right, right and, andthere was nothing I could do.
I mean he was and with that casehe could have been set for life
(50:09):
, because even though he he washimself a very popular,
established visual artist, hewasn't nearly has had his should
have been economically becauseprobably of this kind of
mentality, because he sawhimself as not worthy, and there
was nothing that I could do asa lawyer to change his mind.
(50:31):
And that happened many, manyyears ago, over 10 years ago,
and for and I feel it stilltoday, I feel the pain still
today, because for me it waslike, oh my God, I was, like we
were, we, we could have changedyour life with this and just by
(50:53):
starting the lawsuit and settledit because I didn't want to go
all the way to the Supreme Courtno, just a good settlement for
you could have changed your life, but he had other ideas.
Speaker 1 (51:07):
Yeah well, that fear is very powerful and it's one of
the reasons why, afterpracticing for 21 years
full-time, I became a part-timelawyer and a full-time law
professor, because I realizedthat there was a crying need for
(51:27):
education, not just abouteducation of artists and
creatives, but education oflawyers to represent artists and
creatives, but education oflawyers to represent artists and
creatives.
One of my friends in the comicsbusiness writes a substack with
(51:49):
her observations on a longcareer in comics business and
she recently wrote a piece aboutlegalese and, more importantly,
the need, if you're a comicartist, to find an attorney who
knows your industry, becausethis is one of the other things
(52:10):
that creatives run into anddon't understand.
You're particularly fancreators.
Let's say they get a, they theydo a, a piece of fan fiction,
and they get a note from apublishing company saying that
this is infringing and they takeit to their cousin who
practices real estate law andthey say, cousin, can you help
(52:33):
me with this?
And cousin, who's bored withreal estate law?
Here they're looking at a coolpublishing law case, very
interesting, oh yeah, sure.
And then they just mess it upbadly because they don't know
the industry standards, theydon't know the leading cases.
They don't understand howleverage and negotiating power
(52:55):
works.
There's a million differentthings that you don't understand
how leverage and negotiatingpower works.
There's a million differentthings that you don't understand
, and one of the real dangers inthe creative arts arena is
wannabe lawyers who want to becreative rights attorneys and
they don't have the knowledge orexpertise and think they can
(53:17):
read a law review article or twoand do it, and you can't.
And so creatives have thedifficult task of having to
stand up for themselves and, asI explained to them, if you have
a hairdresser who you don'tlike, you'll drop them in a
minute.
Why wouldn't you do that withyour lawyer?
(53:38):
We're service providers likethe hairdresser, and so shop for
your lawyer.
Make sure there's somebody whocan do this kind of work and has
experience doing this work.
There are experienced lawyersout there.
Now it can be difficult.
I received a phone call one dayfrom two young men up in one of
(54:00):
the more rural Midwest stateswanting a day to heard about me
through one of my books and theywere interested in hiring me to
represent them.
They wanted to launch a comicbook company and I said I was
happy to do that and I gave them, I quoted them.
My hourly rate was there was anintake of air as they oh my
goodness, that's very expensive.
And I said you know it isexpensive.
(54:22):
The fellow said well, you knowlawyers around here in our rural
state.
They work for a lot less money.
And I said you're absolutelyright, they do.
But the problem for you is tofind the expertise that I have.
You have to go to Los Angeles,san Francisco, new York, chicago
, the major cities of the UnitedStates, and the cost of legal
(54:47):
fees in those cities is what I'mquoting you, and so it's an
unfortunate reality thatspecialized expertise in law,
which is what you need to workon in this arena, is going to be
expensive.
Speaker 3 (55:03):
Of course, and you get what you pay.
Speaker 1 (55:07):
Yes, and also, you know, sometimes I'll get a
client and I'll explain.
Well, you can register yourwork for copyright.
There's a $40 fee.
Oh geez, I don't have $40.
You know what Get out of thebusiness If you can't afford
anything.
You got to make a little bit ofmoney to and spend a little bit
(55:30):
of money to be able to makesome success and you got to be
able to protect yourself andunfortunately in the U S the way
that works is you've got to beable to pay for lawyers and it's
not a cost, it's an investmentwell, it's an investment.
It's also, thankfully, under UStax law um, fully deductible.
Perfect, on your on your taxes.
(55:51):
This is a business expense.
So if you're a creator andyou're creating works, you're
spending money.
This is a business expense.
So if you sell your work andget money in exchange, you
deduct the cost of this businessexpense from your taxes.
So there's no reason not to getlegal counsel.
Speaker 3 (56:10):
Oh yeah, but that's amazing that I didn't know that.
That's a great point andsomething to keep in mind.
That's a great point andsomething to keep in mind.
So now let's talk about thedevelopments, or the legal
developments, regarding thisfan-created content.
And where do you see, or whereis the law heading towards?
Speaker 1 (56:35):
Well, probably, the biggest new development that's
going to have a big impact onfan-created works is AI.
Generative AI programs cancreate fan fiction, fan art.
All you do is put in a promptand the work gets created.
(57:03):
So it's going to be veryinteresting to see how that has
an impact on the fan community,because so much of the fan
community is based on the fans'effort to kind of replicate the
works that they love and theyput their passion and their love
(57:24):
for the particular show ortelevision character or book
character into their fan-createdwork.
It seems to be a differentorder of effort if I can create
fan fiction by saying give me aStar Trek story in which Bach
(57:45):
and Kirk have a love affair, andgenerative AI spits it out in
five minutes.
The whole process, the love ofit, the creative process really
is changed by this.
There's also the problem in AIof what's called hallucinations,
which is we're seeing this withAI doing text.
(58:06):
Let's say, a friend of mineactually did this.
He put in his resume and saidyou know, generate a resume for
me and it came up with jobs.
He'd never had no Right Casebriefs that have been done using
generative AI.
All of a sudden there's acitation of 10 cases.
(58:29):
They're all made up.
They don't exist.
That's what's calledhallucinations.
So if you're using a generativeAI program to create fan-c, fan
created works, you have to becautious about hallucinations.
You got to go back through andread everything to make sure
that it didn't go off in someweird tangent that the algorithm
just thought made sense and itjust threw it in.
(58:52):
Um.
We're seeing a real interestingpushback in fan art um, about
generative art, art created byai.
So one of the interesting legalissues and battles we're
dealing with, uh, is whether ornot you have to watermark your
artwork.
So you have, you put a markingon it to say there's no AI in
(59:17):
this or created using AI.
So that's one of the big issuesis disclosure in AI.
Should you, as a creator, haveto disclose that portions of
your creative work were createdusing a generative AI program?
And we saw.
Another big issue that we'reseeing with this is the ability
(59:43):
to create deep fakes.
So this is I can take agenerative program to say give
me an image of Jennifer Aniston,the actress, and have her
smoking a cigar.
She may not have ever smoked acigar in her life I don't think
(01:00:05):
she has from the look of her andshe may not want that
association.
So you have to be careful increating generative AI works,
not to violate people's rightsof privacy, not to violate their
right of publicity, theircelebrityhood rights, and AI
(01:00:28):
allows you to do a lot of that.
So I think probably the twotrends that I think are the most
important to watch, whathappens with fair use after the
Goldsmith Warhol case.
Are there going to be moreiterations on that question?
And what is the impact going tobe of AI on the fandom world
(01:00:50):
and the fan-based communities?
I think those are the two areasthat I'd be looking at.
Speaker 3 (01:00:54):
And I read a few days ago that the AI that learns
from AI-created content becomesless effective.
So the more the AI learns fromAI content, the less quality of
(01:01:17):
the content becomes.
So this debunks a bit the ideathat creators are going to be
completely replaced by AI.
At least at the stage that theyare right now, they still need
human creators to draw from andto generate from, because the
way that we create, the way thathumans create, still cannot be
(01:01:41):
completely replicated by an AI.
Speaker 1 (01:01:44):
I agree with you.
I think, though, that whatwe're more likely to see as a
result of the growth ofgenerative AI programming is a
two-tiered system of creativeworks.
For those who are wealthy andcan afford it, they can get
original, new creative work bylive human artists.
(01:02:08):
For those with less resources,they'll get generative AI.
They'll get works that werecreated using generative AI and
very little in the way of ahuman hand, in the same way that
there are inexpensive stores,discount stores, where you can
(01:02:29):
buy cheap reproductions of artso this is the art that you buy
because you want that.
There's some red in this andyou have a red couch.
That's the criteria For thatkind of art, for the cheap
knockoff dime novel, that sortof thing.
A lot of that's going to becreated by AI because it's going
(01:02:52):
to be cheaper to make.
Speaker 3 (01:02:54):
And also the combination of both of them,
because you can use AI forediting.
You can use AI for a lot ofthings, so for just
brainstorming as well, like tellme a hundred plots of these
scenarios, things like that.
So it's not that we it's not touse AI, it's how to use it into
(01:03:15):
your advantage.
It's a tool.
Exactly, it's a tool, and youcan enrich your originality
through this tool, but as it isright now, it cannot really
replace human creativity for now, Until we create a super
intelligence.
Then there's another story.
Speaker 1 (01:03:33):
That's another story.
No, I talked with an artistclient of mine and I said you
know, what do you think of AI?
And she said I love it.
I said what do you mean?
And she says, oh, it's greatfor making brick walls, it's
great for making a dirt field,it's great for clouds, you know,
great for trees and leaves,simple things that are
(01:03:55):
repetitive, that would take herhours to draw.
She can use an ai generativeprogram and bang, there it is.
But will she ever use an aiprogram to draw a face?
No, to draw action.
No, to show grief?
No, it doesn't have thatnuanced level.
(01:04:18):
The other point you were makingabout sort of the quality the
interesting thing which I readabout AI recently and I thought
was a good comment the wholeconcept of generative AI starts
with data mining.
So you have a giant data setthat you have to upload and then
that becomes the basis fromwhich the algorithm can create
(01:04:39):
new works, which means thateverything that it creates is
based on something that'salready existed.
So where is that flash ofbrilliance from a creator who
does something that you've neverseen before?
I happen to be a big fan ofvisual arts and graphic arts in
(01:05:02):
particular.
I'll come across a new graphicartist who has a technique I've
never seen.
I've never seen that look andthat sparks my interest.
That engages me because they'veadded something new to the
creative universe.
You can't really do that withAI.
It's all based on things thathave previously existed.
Speaker 3 (01:05:29):
I love that.
Yeah, it's true.
It's true.
With that, how do you foreseethe future between fans,
creators, production companiesand what do you foresee as the
relationship moving forward?
(01:05:50):
New ways of limiting thecreations, the fan creations?
Speaker 1 (01:06:04):
Well, I think fandom is going to continue and
flourish.
It's a wonderful thing that wehave opened the tap on all of
this creativity and all of thispent-up desire to create things,
to make things, to love theworks that you enjoy and to want
(01:06:27):
an homage to those works.
So I don't think fandom goesaway with the challenges of AI
or fair use legal doctrine aslong as we the one thing that
kills the intellectual propertyarena is effort to suppress the
(01:06:51):
creative desire and creativeurge, as long as we can avoid
that in our analysis and use oflaw and use law to support the
creative process rather thansuppress it.
Society benefits the cultureand the world benefit of
(01:07:25):
expression, whether it be in thearts, in politics, wherever
suppression always leads to badresults, and so I have to say
that I'm cautiously optimisticfor the future.
Speaker 3 (01:07:37):
But I recognize that things could go in a way that we
hope they don't.
So let's hope for the best andprepare for the worst.
Speaker 1 (01:07:44):
That's how you got to work.
Speaker 3 (01:07:51):
Thank you so much for this amazing talk.
It's been a great pleasuremeeting you and learning so much
from you.
I feel like I would have lovedto be one of your students,
because you have a very engagingway of talking about law law
related issues, and this issomething as a lawyer and
(01:08:15):
another lifetime law student isvery much appreciated, because
when you make it so interestingto listen to understand and so
easy to understand, it reallymuch feels like you can tackle
any legal issue without anyproblems.
(01:08:37):
So thank you so much forsharing thank you.
Speaker 1 (01:08:40):
I strongly believe that legal education is about a
tool set.
If I give you that set of tools, effectively give you a set of
tools, you can then use it foranything and the law is as it
(01:09:05):
for anything, and the law is asdiverse as human experience.
And so I just I think it'sgreat fun for me and I take
great pleasure in seeing mystudents go forward and engage
in the creative communities,help creators, help the arts.
Nothing gives me more joy andpride.
Speaker 3 (01:09:24):
Thank you, thank you and yes, if you would like to
give your socials where somepotential clients may find you,
please go ahead.
Speaker 1 (01:09:38):
Well, I'm reachable at M-H-G.
My initials Mark HenryGreenberg, M-H-G.
At Mark M-A-R-C Greenberg,G-R-E-E-N-B-E-R-G lawcom, so
(01:10:01):
M-H-G at markgreenberglaw andI'll be happy to get back to
people.
I will tell you, as I explainedto you, I have rock star hours,
so I never do anything early inthe morning and I am on the
Pacific Coast here, so it'sPacific Standard Time and if you
get a note from me at three inthe morning, it is me and I am
(01:10:21):
up then.
So I look forward to hearingfrom anyone who's interested in
having further discussion onthese topics.
Speaker 3 (01:10:30):
Perfect.
Thank you so much.
Thank you for your time.
My pleasure and we will surelyinvite you again soon.
Speaker 1 (01:10:38):
Thank you, I'd be happy to come back.
Speaker 3 (01:10:43):
We have reached the end of our episode.
Speaker 2 (01:10:52):
Greetings from Switzerland.
Law plain talk aboutintellectual property.
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(01:11:14):
Copyright Leticia Caminero 2020.
All rights reserved.
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Fair use says it's OK to take somebody else's work
under limited circumstances anduse it without compensation or
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Speaker 2 (00:15):
You are listening to Intangiblia, the podcast of
intangible law plain talk aboutintellectual property.
Please welcome your host,leticia Caminero talk about
intellectual property.
Speaker 3 (00:27):
Please welcome your host, leticia Caminero.
When we love something, weusually want to express it to
the world.
We want to empathize it.
We want to find ways ofcommunicating this love that we
have.
This is the root of fan-createdcontent.
You create art, you createfilms, you create products and
you want to share them with theworld.
(00:48):
However, there are someintellectual property
considerations that you need tokeep in mind if you want to be
part of this fan created contentworld and also if you want to
create a business out of it.
Let's hear what Professor Markhas to say about it.
Speaker 1 (01:12):
My name is Mark Greenberg.
I'm a professor of law atGolden Gate University School of
Law in San Francisco.
I am in the process of becominga professor emeritus, which
means that I will be a retiredlaw professor.
In addition, I have been amember of the California State
Bar, acting as an attorney inCalifornia in the US since 1979.
(01:37):
So I have fairly extensiveexperience both as an attorney
and as a law professor.
I'm a native-born American, atthe age of 71.
Speaker 3 (01:52):
Great.
So the way that I learned aboutyou, about your great profile,
about your great contributionsto the IP world, was thanks to
your book Fandom and the Law, aguide to fan fiction, art, film
and cosplay.
So first let's establish whatis fan fathom or fan fiction,
(02:17):
and then we can go from there tostart talking about the rights
attached to those.
Speaker 1 (02:22):
Right, fandom is a phrase that has been defined in
a variety of different ways, butprimarily what it refers to in
the context of the book that Iwrote is those things which are
created by fans, that are new,original works of art or other
(02:43):
forms of creation which arecreated based on pre-existing
material.
So if you are a fan of aparticular television show, you
might write a story for thattelevision show's characters and
universe, or you might paint apicture of the characters or
scenes in that book ortelevision show.
(03:07):
One of the key elements offandom is therefore is to refer
to the material as fan created.
So this is created by fans.
A key element of fandomcreations is that these are
amateur works.
These are not that.
Once you start talking aboutworks being done by creators,
(03:29):
that that are in the public eye,that are publicly available,
then you're talking aboutprofessional work.
But the amateur work which isavailable for people is usually
available on a nonprofit basis.
It's for free.
Most of it is on the internetthese days, and so that would be
kind of what we're talkingabout with fandom in my book,
(03:52):
pertaining to four areas of fancreation Fan fiction, which is
literary works done by fansabout things that they're fans
of.
So you have, for example, starTrek romances between Kirk and
Spock.
That's a kind of fandom that wesee.
And in addition to fan fiction,there is fan art, which is
(04:16):
based on artistic works thatfans do based on their favorite
elements of fandom.
So if they're fans of Wolverinefrom Marvel Comics, they may do
art depicting Wolverine, and sothat's fan art.
(04:36):
Fan film is a more complex formof fan creation because it
involves creating an entiremovie.
So that involves both theliterary work and graphics and
design and sound recording andsets and building all of this.
(04:58):
Some fans get so excited aboutthe things that they are excited
about as fans that theyactually go out and make movies
based on the same fandom thatothers are writing stories or
doing art on and expensesassociated.
(05:21):
But as filmmaking has becomeeasier with digital tools, we
are starting to see more fanfilms as well.
And then the last area that Iincluded in the fan creation
area is cosplay, which is shortfor costume play, and basically
this is something that you seeparodied and made fun of in
(05:46):
popular media.
Oh, people coming to theconventions comic conventions
like San Diego Comic-Con wearingoutfits, wearing costumes, and
that they think of as cosplay.
That's really the entry level.
Cosplay has become such aserious consideration and
(06:08):
activity that there are somepeople who spend thousands of
hours building elaboratecostumes and makeup and they
compete in competitions atconventions where they can win
prizes of up to $25,000, $30,000in cash and, more importantly,
what they're competing for is anopportunity to have their
(06:31):
cosplay viewed by Hollywoodproducers and Hollywood makeup
artists and set designers andthey can get hired.
So cosplay is a path towardsgetting hired professionally as
a costumer or makeup artist, andso that's been an interesting
(06:53):
and another controversial areaof fan creation.
Speaker 3 (06:57):
Like an audition in itself.
Speaker 1 (06:59):
Yes, yes, At the conventions and I talk about
this a lot in my book at theconventions for the fan artists,
they can meet.
So let's say, you're a fan ofthe DC Comics world and you like
Wonder Woman.
I love her.
So you've been drawing WonderWoman as a fan and doing fan art
(07:20):
.
You can go to a comic bookconvention and sit down with an
artist from dc comics and showyour work and, if they like,
it's called portfolio review.
If they'd like the work, youmight get a job working for your
, for the company that you're.
Speaker 3 (07:38):
You're so, uh, such a fan of so your dream job, you
can get your dream jobabsolutely Absolutely.
If you're good enough and you,you're in the in the right, in
the right place, because youhave to meet with the right
person, of course, right, youcan get your dream job.
Wow.
Speaker 1 (07:54):
Yes, you can get that opportunity, and so it's
interesting because in fancreated works, in that universe
of fan created works, there tendto be two paths.
Some people get into fan-createdworks because they aspire to
work professionally in thatfield and they see it as an
entry path.
Other people do it purely forthe joy of it, and those are the
(08:17):
amateur artists.
They don't want to make anymoney on it.
They're excited if somebodyreads their work.
They're excited to be a part ofan art community of writers and
others who are interested inthe work, that they can exchange
ideas and stories.
They can go to conventions andmeet with fellow fan artists.
Those are folks who are not init for a financial reason at all
(08:39):
.
Their desire is purely for thecommunity and to be a
(09:00):
participant in that community,which is interesting because it
means that for Hollywood, youcan't get them to behave in ways
you might like them to byoffering them the prospects of
career or money, because they'renot interested in that and so
they will.
They will vigorously defendtheir, their right to create
based on your work as a?
Uh, something allowed undercopyright law or and under
trademark law, uh, and they'renot looking to get financial
compensation.
Speaker 3 (09:17):
They're just looking to be part of a community and
for a recognition for theirskill okay, so so, now that you
mentioned the law, so let's talkabout the intersection of IP in
this universe of fan-createdcontent and how you can see it
(09:40):
from both sides.
So from the side that you wouldlike to have recognition for
the work that you do in Fathom,or has the honor of the content,
that you would like to protector limit what is created in
these forums.
Speaker 1 (10:01):
This is a great question.
This is a very interesting partof the world of fandom.
Is this tension that existsbetween intellectual property
law and the desires of fans tocreate fan-created works based
on pre-existing works?
(10:21):
On pre-existing works?
Copyright law is probably thelaw that has the biggest role to
play in the fandom world.
Trademark also has a role, butit's a lot lower in complexity,
I would say.
And for the fan creator,copyright's really a two-edged
(10:44):
sword because, on the one hand,it protects the rights of the
first or original creator whodid the work your fan work is
based on.
Those folks have rights.
If you infringe their copyright, you could get sued and be
(11:04):
forced to pay damages or give upyour work.
On the other hand, the workthat you create as a fan to the
extent you have createdsomething new or added something
to the pre-existing canon thatmay exist about that work that
belongs to you canon that mayexist about that work that
(11:25):
belongs to you you havecopyright in your original work.
But to the extent you'rebuilding off of someone else's
work, you may or may not beinfringing because there's a
legal doctrine called fair useand fair use is the key legal
doctrine in fandom and fair useis the key legal doctrine in
(11:46):
fandom.
Fair use says it's okay to takesomebody else's work under
limited circumstances and use itwithout compensation or without
permission.
There are circumstances inwhich you can make that kind of
use.
Now, one of the best examplesof that that I use is criticism
(12:09):
and comment about artwork.
Fair use gives you the right todo that.
Because fair use says if youtake a relatively small portion
of someone's work and you use itfor criticism or comment and
you're not affecting the marketvalue of that work and you've
taken a reasonable proportion ofit, then that is not an
(12:32):
infringement to the copyright.
That's a huge right and at theheart of all fandom is work
based on someone else's work.
So if you didn't have fair use,there'd be no fandom.
So fair use is really criticalin the law and it applies both
(12:54):
to copyright law and also, in adifferent way, to trademark law.
How so?
Speaker 3 (13:00):
Sorry, how so in trademark?
How so, how so in trademark?
Speaker 1 (13:04):
Well, it's interesting because, first off,
you have to step back and saywhat is a trademark?
A trademark is a brand.
It's a brand name.
It's how we know and identifysomething.
So, for example, some years ago, before I got wisdom about this
(13:27):
, I used to drink Diet Coke likecrazy.
I used to drink a case of DietCoke every other day or so.
I drank a lot of that stuff.
It's pretty awful stuff, but ithas a very distinctive taste
and flavor.
When I look at a bottle, at acan let's say a soda can of Diet
Coke on a shelf, I don't knowwhat's inside that can.
I can't see it.
(13:48):
It's covered in the can.
So when I buy it, I'm buying itwith the trust that, because
I've bought this before andbecause I know this brand, I
know what to expect.
If I opened that can and Ipoured it into a glass and it
was orange or green, I knowwhat's wrong.
(14:12):
Something was wrong becauseCoca-Cola isn't that color.
I have this knowledge of thebrand.
That's the value of brands andtrademark.
Now, you use brand names toidentify your goods or services
and that's the value of atrademark.
So the purpose of that mark isto identify the goods and
(14:35):
services.
If you, as a fan creator, wantto use a reference to Coca-Cola,
you're not using it to identifythe brand or to sell the
product.
You're using it for a differentpurpose, for criticism or
comment or maybe to poke fun.
(14:55):
Those are called nominativeuses and it's a term that then
gets applied to fair use andcombined.
And so we say in trademark lawyou can make a nominative fair
use and that is a use that isnot the kind of use you would
(15:17):
make if you were claiming thetrademark in the work.
And so for that reason, someoneseeing your article where you
talk about you know about thedecline of Western civilization
has been led by Diet Coke.
They know you're not talkingabout the brand You're not
referring to.
(15:37):
You're not trying to passyourself off as Coca-Cola
company or as a dealer ofCoca-Cola.
You're making a fair usecomment.
And so again for fans.
When fans want to usetrademarked brands in their fan
creations, if they keep it tothe nominative fair use so it
(15:57):
doesn't look like they're tryingto impersonate that brand or
create confusion about thesource of the brand, then under
trademark law you have a defense, the defense of nominative fair
use.
Does that make sense?
Speaker 3 (16:13):
yes, it makes perfect sense.
So it's.
It's, it's the the way that yougo about it.
So it's not.
You're not um deceiving thepublic.
You're not passing as the brandor has the all the products as
if they were legitimate from thebrand.
Um, it comes to mind whenyou're talking about this um, I
(16:36):
don't know if you have seenthere's a lot of um fan created
content, fan-created content,well, fan-created product of uh
shoes, especially of uh sneakers.
Uh, they, they, they buy the,the sneakers from the brand and
then they make something amazingout of it, completely unrelated
to the brand, but they keep it.
(16:57):
But they keep the identifiersin the shoes so that if it's
nike, adidas, jordan and soforth, uh, so this is a bit of a
gray area in this.
Speaker 1 (17:07):
Yes, it is.
Speaker 3 (17:08):
Because you're not claiming that this comes from
the brand, but people doidentify it as a product from
that brand and it can bedeceitful in a way be deceitful
(17:30):
in a way.
Speaker 1 (17:30):
It is that's a difficult case that you identify
, because what's happened thereis that the additional
contribution you've made alsoadds value, and so it becomes
more of a challenge to separateout those values and the creator
who has added something ofvalue and then has enhanced the
(17:51):
value of the work.
The interesting thing is that insome limited instances in IP
law we've seen this happen,where the holder or creator of
the original work accepts thenew changes and adopts them and
incorporates them into theirwork, and so this is another
(18:14):
interesting element in fandom,and we've started to see this in
ongoing or continuing series ofwork.
So, let's say, a television showthat's an episodic series,
television shows that aremultiple episodes, a book series
or a comic book series, agraphic novel series, where we
have multiple volumes of thework.
(18:37):
When you have that situationand fans develop who are
followers of the work, whatwe've started to see in the last
oh, I don't know 30 or 40 yearsin particular is a rise of fans
communicating directly with theproduction company and offering
(18:58):
suggestions, suggesting newcharacters, suggesting new plot
directions, suggestingfan-created twists to the
programming, and the productioncompanies take these on and,
because they've got a rabid fanbase, they want to reinforce
(19:23):
that base and support it, and sooftentimes I've seen this
happen, where people makesuggestions from the audience at
a convention and it shows upsix months later on the screen
Because somebody in thatproduction team heard that
suggestion.
That's a good idea.
We should do that idea.
(19:46):
We should do that.
Speaker 3 (19:47):
And so it's fascinating because what it what
this has led to is a blurringof the lines between the amateur
fan and the professional andalso you see that in in video
games as well, that they um,they have these uh sandboxes in
video games sometimes, thatpeople can create anything that
(20:08):
they want and then from theymake new versions of the game
and they incorporate, uh, thiscreation, either a world
building or some characterbuilding or some even the story,
so it's very much shapes theoriginal content into something
else.
But it's amazing in a way.
(20:31):
But it's also it could betricky, because if you're, do
you have the right to use it,even if it's created in your
game, is created in your um, thein your work that you, that you
made, do you have the right tojust take it and use it, or do
you need to go to thatparticular uh fan creator and
(20:54):
ask for permission?
Speaker 1 (20:56):
It's fascinating as a problem, because what we tend
to see is situations wheresomebody has decided to do a fan
created work and they startbuilding that work and the level
(21:17):
of complexity gets to such adegree that the prospects for
infringement are just too high.
And it's been very interestingto see how motion picture and
television studios haveresponded to fan works, to fan
creations.
One of the interesting sort ofside approaches that I thought
(21:45):
was a very creative one.
Paramount Pictures some yearsago filed a lawsuit against a
fan film company that had done afan film called the Battle of
Axanar, which is about the StarTrek world, and what they did is
(22:05):
they took from the famouscharacter in the first series of
Star Trek.
They took Captain Kirk, as itmakes a reference in one of the
early episodes to how a famousKlingon colonel did well in the
Battle of Axanar, and that's it.
It's just a throwaway line.
If you know the Sherlock Holmesstories, he makes reference in
(22:29):
one of the stories to theadventure of the giant rats of
Sumatra, and they never actuallydid a story of the giant rat of
Sumatra, it was just athrowaway line.
So the Battle of Axanar was athrowaway line in the first Star
Trek series.
This group of fans decided theywould make a fan film of the
Battle of Axanar.
So they did and they made likea 40-minute film and they got
(22:53):
sued by Paramount big time forcopyright infringement and
violation of a million differentIP laws.
What came out of it wassomething very interesting.
Paramount developed a set ofrules, guidelines.
They called them to say ifyou'd like to make fan films
(23:13):
based on the Star Trek universe,here are the rules.
If you do it this way, youwon't get sued.
You can't use the name of anyof the like, you can't say the
Federation or use any of thenames of our characters.
You can't indicate that we'responsoring or approving this, it
(23:35):
can't be longer than 30 minutesand it can't be for profit.
And then, as you're goingthrough this list, then you
start to see and you can'tdefame any characters and you
can't have characters sayinganything inconsistent with a
character's typical statementsand they start moderating
(23:56):
content.
Initially, it's all you know.
You can't use our brand andthings like that.
That all makes sense.
But then they start veeringinto their controlling content.
Now you can go ahead and dowhatever you want.
You don't have to follow theirrules.
But if you follow their rules,you won't get sued, and if you
don't, you might.
Isn't that an interesting wayin which they are trying to
(24:20):
shape the way in which fandomand fan creators work with their
material, and we're starting tosee this quote guidelines
approach show up with a varietyof different creators issuing
guidelines on how you can createfan works based on their work.
Speaker 3 (24:38):
But it's a very narrow narrow, narrow, right.
Speaker 1 (24:45):
That's exactly right.
They're putting you into anarrow lane, making absolutely
sure it will not damage theirbrand.
Speaker 3 (24:52):
Yeah, but then where is the creativity license?
Gone License, yeah, gone.
Speaker 1 (25:00):
And it makes it even harder to be that creative,
because you know that you'rerunning a risk, because they've
told you that if you violatethese norms, these guidelines,
they're coming after you.
Speaker 3 (25:14):
Yeah, and then it actually it harms the fun,
because the fun is, uh, you cansee it from their perspective,
like I'm, I'm just trying tohonor the work, I'm trying to
further in, um, get myselfinside this beautiful universe
that I enjoy.
So I just want to dream aboutit and create about it.
(25:37):
So it's yeah, from the fanperspective, it's like you're
mutilating my art.
Speaker 1 (25:42):
I saw this as a very negative development in fandom.
Uh, this, this business ofcoming up with guidelines, um,
because it contributes to theatmosphere of fear yeah, exactly
, exactly and fear killscreativity yeah, the.
Speaker 3 (26:01):
And the moment you tell them everything that they
cannot do is like yeah, but whatcan I?
What you're telling me that I'mallowed to do?
I don't want to do it right,right, right.
It's an artificial constraintexactly so uh, apart from from
these guidelines, what otherlegal considerations uh should
(26:22):
fund uh creators, fund contentcreators should uh keep in mind
regarding not ip and regardingspecifically trademark?
Speaker 1 (26:31):
well, it's one of the areas that has been a lot very
controversial in the world offandom has to do with this topic
.
We've mentioned before thisconcept of fair use, um, and the
definition of fair use has beena constantly changing landscape
, and so this is something thatI encourage fan creators to pay
(26:53):
attention to is to find out whatthe latest cases are in the
area of fair use, so you canhave a sense of what you can or
cannot do.
There is a concept in fair uselaw that is called the
(27:14):
transformative doctrine, andwhat this means is that if you
have and let's say you take anoriginal copyrighted work, let's
say it's your story, it's the,it's the story of the first Star
Wars movie, that's, that's thework you're taking, ok, now,
(27:41):
okay, now, copyright law saysthat if you create a derivative
work, a work based on theoriginal work, you've now
created a derivative work.
So, let's say, you've taken abook and you made it into a
movie.
That's a derivative work.
It's a work derived from theoriginal work, but different.
Okay, that's a derivative work.
And the creator of thecopyrighted work the person who
created the original work.
They also own the right tocreate derivative works based on
(28:06):
their original.
Sometimes they do that by.
Let's say, if I wrote Star Warsthe first episode, then I
create this volume two as aderivative work based on volume
one's universe.
Okay, so that's how you can dothat.
(28:27):
What this transformativedoctrine says is if you create
your work based on someoneelse's original work and you add
new elements, we will say thatyou have transformed the work.
And if you've transformed thework by adding new elements, we
(28:51):
will say that that is not acopyright infringement.
You can have a copyright inyour newly created work and you
won't get sued for the previouswork you took from because
you've transformed it.
That's the transformative test.
Now it's a four-part test.
It requires four differentelements that have to be
(29:13):
analyzed, have to be analyzed.
Courts have been all over themap trying to figure out what is
or is not a transformative work.
Some courts have looked at somethings and said, yes, this is
clearly transformative.
Others have said, no, it's not.
And so there was a series ofdifferent cases that came down
(29:39):
and I discuss all of these indetail in my book.
A series of cases that camedown about the limits and the
scope of fair use.
Now, obviously, this is veryimportant for fan creations
because all of their creationsare derivative works.
They all start with somebodyelse's work and then they build
(30:01):
off of that.
That's the essence of afan-created work because it's a
fan, you're admiring of somebodyelse's work and you wish to use
it in your own new work.
If the transformative doctrineprotects you, you have a very
broad range of things you can do.
If it doesn't protect you,you're going to be infringing
(30:25):
people's work and you're goingto get sued for copyright
infringement.
So the scope of the fair uselaw is really critical to
understand in order toeffectively be a fan-based
creator.
But the law is shifting andchanging like the sands in the
desert and the Supreme Court hasrecently, in a case Goldsmith
(30:50):
versus the Andy Warhol estate,walked back the broad grant of
fair use rights they've given inthe past and they've pulled it
back and said no, we think somethings can be infringing that
particular case, the Goldsmithcase.
Lynn Goldsmith is a photographerof rock and roll artists.
(31:10):
She took a famous photo ofPrince when he was a young
artist and it ran in magazinesand she sold copies.
And Condé Nast came to AndyWarhol and said we want you to
create an original artwork tocommemorate I think it was like
(31:32):
the 10-year anniversary afterPrince had died.
After Prince had died, and soWarhol took Goldsmith's photo of
Prince and did his typicaltreatment multicolors and sort
of shadowing and so on and theyran that in the magazine.
But then what Goldsmith didn'tknow about because Goldsmith was
(31:55):
aware of this, he was okay withthat what she didn't know is
that Warhol did 10 otheriterations of this of the Prince
graphic and then, after Warholdied, the estate of Andy Warhol
was selling them for thousandsand thousands of dollars.
Goldsmith sued Warhol's estatesaid transformative fair use,
(32:25):
pretty, pretty straightforward.
I mean clearly warhol'streatment was not the same as
the photograph and what came outon the other end had new
expression that he'd added court, this time the court, the
supreme court.
They went probably the districtcourt and the court of appeals.
Both said warhol states right,this is, this is a
transformative fair use, noinfringement.
Us Supreme Court reversed.
They said we think this goestoo far.
(32:49):
We think that you haven't addedanything really new or original
.
The base of the work is stillthe original photographer's work
, lynn Goldsmith's work, andyou're using that without
permission or giving her anycompensation.
This is not a fair use.
Well, that threw the wholelegal arena into a dizzying spin
(33:13):
, because we now don't reallyknow just how far you go to have
to have a transformative fairuse or not.
It's very much up in the airand we are, as Indiana Jones
said years ago, making it up aswe go along.
(33:33):
We're still trying to figureout what the parameters of the
law should be.
So for fan creators, Iencourage you to be careful with
transformation doctrine anddon't just think it's okay.
You should definitely havecounsel review something if you
think that potentially it couldrun into a copyright
(33:55):
infringement problem.
Or if you're trying to rely onthe transformative defense, you
need somebody to analyze it,based on the latest cases.
Speaker 3 (34:04):
It has become a case by case kind of which is
something that is extremelynerve wracking.
When you are trying to knowwhich side of the law are you
going to be standing, especiallyif you don't want to.
If you don't want, you get toget yourself in trouble.
(34:24):
You, you want to, trying toavoid legal issues.
But is this, if there's noclear path and you don't know,
it depends on if I get sued ornot?
Speaker 1 (34:35):
well, it's.
It's a term I used years ago ina Law Review article I wrote.
It talked about the chillinguncertainty.
Speaker 3 (34:43):
I like that.
Speaker 1 (34:44):
And I think that's what happens here is that your
expressive desires, yourinterest in creating, is chilled
by the fear that you could getsued for what you create.
Speaker 3 (34:58):
Yeah, and even if you're trying to be careful, you
don't know how careful youshould be.
Speaker 1 (35:06):
That's really important.
It's very important tounderstand that, because
risk-taking is part of being anartist.
But you want to be informed, ofcourse.
You want informed risk-taking,and the kind of risk that comes
out of nowhere, where you had noidea that this could
(35:28):
potentially be a problem, isvery destabilizing.
Speaker 2 (35:36):
You are listening to Intangiblia, the podcast of
intangible law playing talkabout intellectual property.
Speaker 3 (35:44):
Now, we cannot talk about fandom without social
media, because it is theuniverse in which we all exist,
now, now, and this is whereeverything happens and
communities get created and workgets published, emphasized,
(36:15):
shared and so on.
So how does social mediaamplify the legal challenges and
make it even harder or better,according to how you see it, for
the creators and also for thebrands?
Speaker 1 (36:24):
Great question, and social media and the Internet in
general has both become hugelyvaluable in fandom.
If you want to write fanfiction, now there are thousands
of sites and millions of piecesof fan fiction that are
(36:47):
distributed on a regular basis,so there's a tremendous
availability and opportunity forpeople to work on various
platforms.
There's a platform calledArchive of Our Own, which is a
fan fiction platform.
They have thousands andthousands of young fan fiction
(37:08):
writers on that platform.
It's a safe platform, archiveof Our Own.
There's another one calledDeviantArt, which is a fan site
for artists.
A lot of fan art goes up onDeviantArt.
There are always a couple ofthings that I encourage fan
creators, fan-based creators, topay attention to.
(37:30):
One is the TCU, the Terms andConditions of Use, the TCU,
which governs all of thesedifferent websites.
So, for example, a popular siteto put up fan art is YouTube,
very popular.
The terms and conditions of usefor YouTube say anything that
(37:52):
you put up on YouTube belongs toYouTube.
They can take it, they can useit, they can modify it, they can
alter it, they can do whateverthey want with it.
You give up a certain level ofyour rights by virtue of these
terms and conditions of use.
So what?
I encourage anybody who is acreator who wants to upload
(38:12):
material to social media getinto their site, find out what
the terms and conditions of useare, or whatever else they want
to call it guidelines,regulations, submission
guidelines know what they can orcannot, what the site can or
cannot do with your content, andthis is a vital thing for
(38:34):
people who are creating contentto make sure that they know what
can can't be done with theircontent, and oftentimes they
don't realize that there aresome significant uh um
advantages that they're givingaway um, a long time ago, I
wrote an article about socialmedia and, uh, I read most of
(38:59):
the terms of uh back then and itwas uh, it was terrible.
Speaker 3 (39:05):
yes, everything that uh, and I remember that uh
linkedin I don't know if theychange it because it was many
years ago.
Linkedin had ideas.
Also, has uh something that youwere giving away by being a
user Right Ideas, right.
Speaker 1 (39:20):
They own your mind.
Speaker 3 (39:22):
Exactly, they own your mind.
Something that is not evenprotected cannot be protected
through IP, so they own it.
Speaker 1 (39:30):
They're doing it by contract.
Speaker 3 (39:31):
Exactly so, whatever thought you have using their
platform so according to theirterms, is theirs?
Yeah, so it's.
So according to their terms,it's theirs.
So it's very important to beinformed, especially if your
username has the channel ofmaking yourself known, making
your art known, making yourcontent known.
(39:52):
It's very, very important tounderstand where you're giving
up and where you're accepting,because it's a great tool for
you to get a platform.
Speaker 1 (40:09):
It's a great tool for you to publish your work, but
also you can be taken advantageof or you can be giving away
more than you would like wetalked before we started today
about the question of legalliteracy and the ability of
(40:31):
people to understand what thelaw provides and what their
rights are, and for far too manycreators, there is little
opportunity made available tothem to understand the legal
obligations and benefits thatthe law provides for them as
(40:52):
creators.
And far too often, if you thinkabout your daily life in this
contemporary digital world, onhow many days is somebody trying
to scam you, trying to get inand get your money, get your
assets, get control of somethingthat you own or have?
(41:15):
It is a predatory universe inthe online world and far too
often I find artists are tooinnocent about that and they
don't understand, they can'tbelieve how venal and awful some
folks can be in trying to gettheir creations away from them,
(41:42):
get their creations away fromthem, in trying to take their
work and not give themattribution or any compensation.
And so what I tell youngartists all the time is if you
want to make art for your familyand your friends and you don't
want it to go beyond that, youdon't need my services and you
don't want it to go beyond that,you don't need my services.
But if you want to get involvedin the selling of your art.
(42:05):
Now you're in business and ifyou're in business you need to
know the rules.
You need to know how thisbusiness is done, because if you
don't, you'll get takenadvantage of.
I used to teach a class calledLegal Aspects of the Music
Business and I taught thiscourse to musicians who had
(42:26):
never had any interaction withthe legal business, but they
wanted to get out to the musicbiz and I told them all of you,
right now, you are guppies.
A guppy is a little tiny fish.
I said all of you right now areguppies in the sea.
By the time we finish thiscourse, you will be minnows.
Minnows are about this big andI said and the sea is full of
(42:53):
sharks.
So when you're a guppy, youdon't know enough, you just get
eaten.
When you're a guppy, you don'tknow enough, you just get eaten.
When you're a minnow, you knowenough to maybe swim out of the
way.
That's about the best I can dofor you.
I can't change the leverage.
You won't have the leverage.
You're a young artist startingtheir big production company,
(43:14):
but at least you should knowwhat they can do and how they do
it and you should know how totry to protect yourself and,
frankly, the law provides forsome protection.
Copyright law and trademark lawdo provide protection for
creators If they know how thelaw works and they use it.
Speaker 3 (43:36):
I love that analogy.
I love that analogy.
I love that.
It's very much like I give youthe tools just enough for you to
defend for yourself and thenfind more tools that keep
growing, keep going up in the inthe chain.
That's it.
Speaker 1 (43:54):
The artists that I work with, many of, actually all
of the same.
That's it, uh, the artists thatI work with, many of, uh, uh,
actually all of the artists thatI work with these days have at
least 30 or 40 years ofexperience oh, wow they are
deeply experienced.
They're, all you know, in their60s, 70s.
They're still creating.
These artists.
No, they have been throughthrough all of the, the terrible
(44:16):
times and the predatory efforts, and so they've got a tough
skin and they work with me andtogether we protect their rights
.
But it's a constant battle andit is war, it is aggressive
battle.
It is aggressive battle.
Speaker 3 (44:47):
I have to stand on the podium and stomp my feet and
raise my voice and doeverything I can to use every
power I can to get my clientsfor their rights.
Also, it's very much aboutmaking your right known,
understanding your right andmaking it happen.
That's one of the things that alot of creators, entrepreneurs,
(45:08):
creative entrepreneurs alsodon't understand.
That the thing about IP ingeneral and very much, it's very
much of a right that you needto assert.
It's not going to come out ofthin air that oh OK, so this is
my right and they're going torecognize it.
(45:29):
No, you need to really assertyour right and make sure that is
that is being respected,because you you have to be
vigilant.
You have to pursue anyone who'sdoing unauthorized use,
pursuing anyone who's doinganything that is infringing your
rights, because if not, it'snot going to happen.
(45:51):
No one is going to pursue itfor you.
We do have some, of course,some sort of cases that it is
enforceable by the public meansand it has to be pursued
publicly, but it's not the greatmajority and it's not
(46:13):
necessarily going to happenwithout you being behind
necessarily going to happenwithout you being behind,
without you.
Speaker 1 (46:22):
You know you.
You earlier talked abouttalking to the client who gave
in.
This happens a lot becauseartists are have a lot of, and
creatives have a lot of fear.
Oh, I couldn't sue them.
How could I sue somebody?
Oh, they have all the money,they have all the power.
(46:42):
Oh, this is just how thingsalways are.
Yeah, the little guy alwaysgets screwed.
That's just life.
It requires to protect yourrights, a willingness not to
give in like that.
There are lots of sad caseslike the one that you talked
(47:09):
about, where lawyers getinvolved and they're actively
working to defend their client'srights and the client gets
nervous and caves in, accepts apoor deal, a poor deal,
withdraws their claim and somuch of what I do as the lawyer.
Remember I was talking aboutthe counseling function, a lot
of that.
I had this experience justrecently.
(47:29):
I had a client who had been ina terrible relationship with a
very manipulative fellow who wasserving as his manager, slash
lawyer, and we had to deal withlitigation.
We had to file a lawsuit to getrid of this guy, to get to
(47:53):
disentangle him from royalties.
He had his fingers in a lot ofmy clients' money and when we
filed a lawsuit, my client hadnever been involved in a lawsuit
before and I explained to himlisten, you need to understand
that in a lawsuit it's likebeing on a river cruise Some
days you're up, some days you'redown, and there will be ups and
(48:17):
downs throughout the process.
It was really helpful for me togive him that context, because
when we hit a bad patch, heunderstood.
I had told him oh, this is oneof those bad patch times, huh,
when you're going down, I said,yeah, we'll be up and it will be
doing well in a week or two.
And, sure enough, we were.
(48:38):
Clients need to understand thatthere is that rhythm that goes
on back and forth, that whenbecause standing up Takes a lot
of courage and takes money, ofcourse, I mean it's it's, it's a
sad reality that there are verylimited resources legal
(49:00):
resources available to creativesif they lack the ability to pay
legal fees.
Speaker 3 (49:05):
Yeah, that's the case that I was telling you about
before.
It was a very particular.
It was a very straightforwardcase.
It was such a clear violationwas a very straightforward case.
It was such a clear violation.
A book publisher took visualcontent without the
(49:27):
authorization of the visualartist.
There was no question aboutthat.
It was his work.
There was no question about theinfringement.
It was extremely clear.
And he talked to me, let's saytoday, and the next week he
(49:48):
called me again to say that healready signed and gave away his
right because he didn't want tofight them, because he thought
he didn't have he thoughthimself as not worthy of the
fight, right, right and, andthere was nothing I could do.
I mean he was and with that casehe could have been set for life
(50:09):
, because even though he he washimself a very popular,
established visual artist, hewasn't nearly has had his should
have been economically becauseprobably of this kind of
mentality, because he sawhimself as not worthy, and there
was nothing that I could do asa lawyer to change his mind.
(50:31):
And that happened many, manyyears ago, over 10 years ago,
and for and I feel it stilltoday, I feel the pain still
today, because for me it waslike, oh my God, I was, like we
were, we, we could have changedyour life with this and just by
(50:53):
starting the lawsuit and settledit because I didn't want to go
all the way to the Supreme Courtno, just a good settlement for
you could have changed your life, but he had other ideas.
Speaker 1 (51:07):
Yeah well, that fear is very powerful and it's one of
the reasons why, afterpracticing for 21 years
full-time, I became a part-timelawyer and a full-time law
professor, because I realizedthat there was a crying need for
(51:27):
education, not just abouteducation of artists and
creatives, but education oflawyers to represent artists and
creatives, but education oflawyers to represent artists and
creatives.
One of my friends in the comicsbusiness writes a substack with
(51:49):
her observations on a longcareer in comics business and
she recently wrote a piece aboutlegalese and, more importantly,
the need, if you're a comicartist, to find an attorney who
knows your industry, becausethis is one of the other things
(52:10):
that creatives run into anddon't understand.
You're particularly fancreators.
Let's say they get a, they theydo a, a piece of fan fiction,
and they get a note from apublishing company saying that
this is infringing and they takeit to their cousin who
practices real estate law andthey say, cousin, can you help
(52:33):
me with this?
And cousin, who's bored withreal estate law?
Here they're looking at a coolpublishing law case, very
interesting, oh yeah, sure.
And then they just mess it upbadly because they don't know
the industry standards, theydon't know the leading cases.
They don't understand howleverage and negotiating power
(52:55):
works.
There's a million differentthings that you don't understand
how leverage and negotiatingpower works.
There's a million differentthings that you don't understand
, and one of the real dangers inthe creative arts arena is
wannabe lawyers who want to becreative rights attorneys and
they don't have the knowledge orexpertise and think they can
(53:17):
read a law review article or twoand do it, and you can't.
And so creatives have thedifficult task of having to
stand up for themselves and, asI explained to them, if you have
a hairdresser who you don'tlike, you'll drop them in a
minute.
Why wouldn't you do that withyour lawyer?
(53:38):
We're service providers likethe hairdresser, and so shop for
your lawyer.
Make sure there's somebody whocan do this kind of work and has
experience doing this work.
There are experienced lawyersout there.
Now it can be difficult.
I received a phone call one dayfrom two young men up in one of
(54:00):
the more rural Midwest stateswanting a day to heard about me
through one of my books and theywere interested in hiring me to
represent them.
They wanted to launch a comicbook company and I said I was
happy to do that and I gave them, I quoted them.
My hourly rate was there was anintake of air as they oh my
goodness, that's very expensive.
And I said you know it isexpensive.
(54:22):
The fellow said well, you knowlawyers around here in our rural
state.
They work for a lot less money.
And I said you're absolutelyright, they do.
But the problem for you is tofind the expertise that I have.
You have to go to Los Angeles,san Francisco, new York, chicago
, the major cities of the UnitedStates, and the cost of legal
(54:47):
fees in those cities is what I'mquoting you, and so it's an
unfortunate reality thatspecialized expertise in law,
which is what you need to workon in this arena, is going to be
expensive.
Speaker 3 (55:03):
Of course, and you get what you pay.
Speaker 1 (55:07):
Yes, and also, you know, sometimes I'll get a
client and I'll explain.
Well, you can register yourwork for copyright.
There's a $40 fee.
Oh geez, I don't have $40.
You know what Get out of thebusiness If you can't afford
anything.
You got to make a little bit ofmoney to and spend a little bit
(55:30):
of money to be able to makesome success and you got to be
able to protect yourself andunfortunately in the U S the way
that works is you've got to beable to pay for lawyers and it's
not a cost, it's an investmentwell, it's an investment.
It's also, thankfully, under UStax law um, fully deductible.
Perfect, on your on your taxes.
(55:51):
This is a business expense.
So if you're a creator andyou're creating works, you're
spending money.
This is a business expense.
So if you sell your work andget money in exchange, you
deduct the cost of this businessexpense from your taxes.
So there's no reason not to getlegal counsel.
Speaker 3 (56:10):
Oh yeah, but that's amazing that I didn't know that.
That's a great point andsomething to keep in mind.
That's a great point andsomething to keep in mind.
So now let's talk about thedevelopments, or the legal
developments, regarding thisfan-created content.
And where do you see, or whereis the law heading towards?
Speaker 1 (56:35):
Well, probably, the biggest new development that's
going to have a big impact onfan-created works is AI.
Generative AI programs cancreate fan fiction, fan art.
All you do is put in a promptand the work gets created.
(57:03):
So it's going to be veryinteresting to see how that has
an impact on the fan community,because so much of the fan
community is based on the fans'effort to kind of replicate the
works that they love and theyput their passion and their love
(57:24):
for the particular show ortelevision character or book
character into their fan-createdwork.
It seems to be a differentorder of effort if I can create
fan fiction by saying give me aStar Trek story in which Bach
(57:45):
and Kirk have a love affair, andgenerative AI spits it out in
five minutes.
The whole process, the love ofit, the creative process really
is changed by this.
There's also the problem in AIof what's called hallucinations,
which is we're seeing this withAI doing text.
(58:06):
Let's say, a friend of mineactually did this.
He put in his resume and saidyou know, generate a resume for
me and it came up with jobs.
He'd never had no Right Casebriefs that have been done using
generative AI.
All of a sudden there's acitation of 10 cases.
(58:29):
They're all made up.
They don't exist.
That's what's calledhallucinations.
So if you're using a generativeAI program to create fan-c, fan
created works, you have to becautious about hallucinations.
You got to go back through andread everything to make sure
that it didn't go off in someweird tangent that the algorithm
just thought made sense and itjust threw it in.
(58:52):
Um.
We're seeing a real interestingpushback in fan art um, about
generative art, art created byai.
So one of the interesting legalissues and battles we're
dealing with, uh, is whether ornot you have to watermark your
artwork.
So you have, you put a markingon it to say there's no AI in
(59:17):
this or created using AI.
So that's one of the big issuesis disclosure in AI.
Should you, as a creator, haveto disclose that portions of
your creative work were createdusing a generative AI program?
And we saw.
Another big issue that we'reseeing with this is the ability
(59:43):
to create deep fakes.
So this is I can take agenerative program to say give
me an image of Jennifer Aniston,the actress, and have her
smoking a cigar.
She may not have ever smoked acigar in her life I don't think
(01:00:05):
she has from the look of her andshe may not want that
association.
So you have to be careful increating generative AI works,
not to violate people's rightsof privacy, not to violate their
right of publicity, theircelebrityhood rights, and AI
(01:00:28):
allows you to do a lot of that.
So I think probably the twotrends that I think are the most
important to watch, whathappens with fair use after the
Goldsmith Warhol case.
Are there going to be moreiterations on that question?
And what is the impact going tobe of AI on the fandom world
(01:00:50):
and the fan-based communities?
I think those are the two areasthat I'd be looking at.
Speaker 3 (01:00:54):
And I read a few days ago that the AI that learns
from AI-created content becomesless effective.
So the more the AI learns fromAI content, the less quality of
(01:01:17):
the content becomes.
So this debunks a bit the ideathat creators are going to be
completely replaced by AI.
At least at the stage that theyare right now, they still need
human creators to draw from andto generate from, because the
way that we create, the way thathumans create, still cannot be
(01:01:41):
completely replicated by an AI.
Speaker 1 (01:01:44):
I agree with you.
I think, though, that whatwe're more likely to see as a
result of the growth ofgenerative AI programming is a
two-tiered system of creativeworks.
For those who are wealthy andcan afford it, they can get
original, new creative work bylive human artists.
(01:02:08):
For those with less resources,they'll get generative AI.
They'll get works that werecreated using generative AI and
very little in the way of ahuman hand, in the same way that
there are inexpensive stores,discount stores, where you can
(01:02:29):
buy cheap reproductions of artso this is the art that you buy
because you want that.
There's some red in this andyou have a red couch.
That's the criteria For thatkind of art, for the cheap
knockoff dime novel, that sortof thing.
A lot of that's going to becreated by AI because it's going
(01:02:52):
to be cheaper to make.
Speaker 3 (01:02:54):
And also the combination of both of them,
because you can use AI forediting.
You can use AI for a lot ofthings, so for just
brainstorming as well, like tellme a hundred plots of these
scenarios, things like that.
So it's not that we it's not touse AI, it's how to use it into
(01:03:15):
your advantage.
It's a tool.
Exactly, it's a tool, and youcan enrich your originality
through this tool, but as it isright now, it cannot really
replace human creativity for now, Until we create a super
intelligence.
Then there's another story.
Speaker 1 (01:03:33):
That's another story.
No, I talked with an artistclient of mine and I said you
know, what do you think of AI?
And she said I love it.
I said what do you mean?
And she says, oh, it's greatfor making brick walls, it's
great for making a dirt field,it's great for clouds, you know,
great for trees and leaves,simple things that are
(01:03:55):
repetitive, that would take herhours to draw.
She can use an ai generativeprogram and bang, there it is.
But will she ever use an aiprogram to draw a face?
No, to draw action.
No, to show grief?
No, it doesn't have thatnuanced level.
(01:04:18):
The other point you were makingabout sort of the quality the
interesting thing which I readabout AI recently and I thought
was a good comment the wholeconcept of generative AI starts
with data mining.
So you have a giant data setthat you have to upload and then
that becomes the basis fromwhich the algorithm can create
(01:04:39):
new works, which means thateverything that it creates is
based on something that'salready existed.
So where is that flash ofbrilliance from a creator who
does something that you've neverseen before?
I happen to be a big fan ofvisual arts and graphic arts in
(01:05:02):
particular.
I'll come across a new graphicartist who has a technique I've
never seen.
I've never seen that look andthat sparks my interest.
That engages me because they'veadded something new to the
creative universe.
You can't really do that withAI.
It's all based on things thathave previously existed.
Speaker 3 (01:05:29):
I love that.
Yeah, it's true.
It's true.
With that, how do you foreseethe future between fans,
creators, production companiesand what do you foresee as the
relationship moving forward?
(01:05:50):
New ways of limiting thecreations, the fan creations?
Speaker 1 (01:06:04):
Well, I think fandom is going to continue and
flourish.
It's a wonderful thing that wehave opened the tap on all of
this creativity and all of thispent-up desire to create things,
to make things, to love theworks that you enjoy and to want
(01:06:27):
an homage to those works.
So I don't think fandom goesaway with the challenges of AI
or fair use legal doctrine aslong as we the one thing that
kills the intellectual propertyarena is effort to suppress the
(01:06:51):
creative desire and creativeurge, as long as we can avoid
that in our analysis and use oflaw and use law to support the
creative process rather thansuppress it.
Society benefits the cultureand the world benefit of
(01:07:25):
expression, whether it be in thearts, in politics, wherever
suppression always leads to badresults, and so I have to say
that I'm cautiously optimisticfor the future.
Speaker 3 (01:07:37):
But I recognize that things could go in a way that we
hope they don't.
So let's hope for the best andprepare for the worst.
Speaker 1 (01:07:44):
That's how you got to work.
Speaker 3 (01:07:51):
Thank you so much for this amazing talk.
It's been a great pleasuremeeting you and learning so much
from you.
I feel like I would have lovedto be one of your students,
because you have a very engagingway of talking about law law
related issues, and this issomething as a lawyer and
(01:08:15):
another lifetime law student isvery much appreciated, because
when you make it so interestingto listen to understand and so
easy to understand, it reallymuch feels like you can tackle
any legal issue without anyproblems.
(01:08:37):
So thank you so much forsharing thank you.
Speaker 1 (01:08:40):
I strongly believe that legal education is about a
tool set.
If I give you that set of tools, effectively give you a set of
tools, you can then use it foranything and the law is as it
(01:09:05):
for anything, and the law is asdiverse as human experience.
And so I just I think it'sgreat fun for me and I take
great pleasure in seeing mystudents go forward and engage
in the creative communities,help creators, help the arts.
Nothing gives me more joy andpride.
Speaker 3 (01:09:24):
Thank you, thank you and yes, if you would like to
give your socials where somepotential clients may find you,
please go ahead.
Speaker 1 (01:09:38):
Well, I'm reachable at M-H-G.
My initials Mark HenryGreenberg, M-H-G.
At Mark M-A-R-C Greenberg,G-R-E-E-N-B-E-R-G lawcom, so
(01:10:01):
M-H-G at markgreenberglaw andI'll be happy to get back to
people.
I will tell you, as I explainedto you, I have rock star hours,
so I never do anything early inthe morning and I am on the
Pacific Coast here, so it'sPacific Standard Time and if you
get a note from me at three inthe morning, it is me and I am
(01:10:21):
up then.
So I look forward to hearingfrom anyone who's interested in
having further discussion onthese topics.
Speaker 3 (01:10:30):
Perfect.
Thank you so much.
Thank you for your time.
My pleasure and we will surelyinvite you again soon.
Speaker 1 (01:10:38):
Thank you, I'd be happy to come back.
Speaker 3 (01:10:43):
We have reached the end of our episode.
Speaker 2 (01:10:52):
Greetings from Switzerland.
Law plain talk aboutintellectual property.
Did you like what we talkedtoday?
Please share with your network.
Do you want to learn more aboutintellectual property?
Subscribe now on your favoritepodcast player.
Follow us on Instagram,facebook, linkedin and Twitter.
Visit our website,wwwintangibliacom.
(01:11:14):
Copyright Leticia Caminero 2020.
All rights reserved.
This podcast is provided forinformation purposes only.
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I’m Jay Shetty host of On Purpose the worlds #1 Mental Health podcast and I’m so grateful you found us. I started this podcast 5 years ago to invite you into conversations and workshops that are designed to help make you happier, healthier and more healed. I believe that when you (yes you) feel seen, heard and understood you’re able to deal with relationship struggles, work challenges and life’s ups and downs with more ease and grace. I interview experts, celebrities, thought leaders and athletes so that we can grow our mindset, build better habits and uncover a side of them we’ve never seen before. New episodes every Monday and Friday. Your support means the world to me and I don’t take it for granted — click the follow button and leave a review to help us spread the love with On Purpose. I can’t wait for you to listen to your first or 500th episode!
Dateline NBC
Current and classic episodes, featuring compelling true-crime mysteries, powerful documentaries and in-depth investigations. Follow now to get the latest episodes of Dateline NBC completely free, or subscribe to Dateline Premium for ad-free listening and exclusive bonus content: DatelinePremium.com
Stuff You Should Know
If you've ever wanted to know about champagne, satanism, the Stonewall Uprising, chaos theory, LSD, El Nino, true crime and Rosa Parks, then look no further. Josh and Chuck have you covered.