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Post #1117765

Author
yhwx
Parent topic
Dealing with People Selling Fan Projects
Date created
12-Oct-2017, 12:53 PM

Frank your Majesty said:

I’m not a lawyer but I have access to google and wikipedia.

From Wikipedia:

Exclusive rights

There are six basic rights protected by copyright. The owner of copyright has the exclusive right to do and to authorize others to do the following:

  1. To reproduce the work in copies or phonorecords;
  2. To prepare derivative works based upon the work;
  3. To distribute copies or phonorecords of the work to the public by sale or other transfer of ownership, or by rental, lease, or lending;
  4. To publicly perform the work, in the case of literary, musical, dramatic, and choreographic works, pantomimes, and motion pictures and other audiovisual works;
  5. To publicly display the work, in the case of literary, musical, dramatic, and choreographic works, pantomimes, and pictorial, graphic, or sculptural works, including the individual images of a motion picture or other audiovisual work.
  6. To digitally transmit sound recordings by means of digital audio transmission.

A violation of any of the exclusive rights of the copyright holder is a copyright infringement, unless fair use (or a similar affirmative defense) applies.

Fair use

Fair use is the use of limited amounts of copyrighted material in such a way as to not be an infringement. It is codified at 17 U.S.C. § 107, and states that “the fair use of a copyrighted work … is not an infringement of copyright.” The section lists four factors that must be assessed to determine whether a particular use is fair. There are no bright-line rules regarding fair use and each determination is made on an individualized case-by-case basis.

  1. Purpose and character of the use, including whether the use is of a commercial nature or is for nonprofit educational purposes: Nonprofit educational and noncommercial uses are more likely to be fair use. This does not mean that all nonprofit education and noncommercial uses are fair use or that all commercial uses are not fair. Instead, courts will balance the purpose and character of the use against the other factors below. Additionally, “transformative” uses are more likely to be considered fair. Transformative uses are those that add something new, with a further purpose or different character, and do not substitute for the original use of the work.
  2. Nature of the copyrighted work: Using a more creative or imaginative work (such as a novel, movie, or song) is less likely to support fair use than using a factual work (such as a technical article or news item). In addition, use of an unpublished work is less likely to be considered fair.
  3. Amount and substantiality of the portion used in relation to the copyrighted work as a whole: Courts look at both the quantity and quality of the copyrighted material that was used. Using a large portion of the copyrighted work is less likely to be fair use. However, courts have occasionally found use of an entire work to be fair use, and in other contexts, using even a small amount of a copyrighted work was determined not to be fair use because the selection was an important part—or the “heart”—of the work.
  4. Effect of the use upon the potential market for or value of the copyrighted work: Here, courts review whether, and to what extent, the unlicensed use harms the existing or future market for the copyright owner’s original work. In assessing this factor, courts consider whether the use is hurting the current market for the original work (for example, by displacing sales of the original) and/or whether the use could cause substantial harm if it were to become widespread.

In addition to these four factors, the statute also allows courts to consider any other factors that may be relevant to the fair use analysis. Courts evaluate fair use claims on a case-by-case basis, and the outcome of any given case depends on the specific facts of that case. There is no formula to ensure that a predetermined percentage or amount of a work—or specific number of words, lines, pages, copies—may be used without permission.

The justification of the fair use doctrine turns primarily on whether, and to what extent, the challenged use is transformative. “The use must be productive and must employ the quoted matter in a different manner or for a different purpose from the original. A quotation of copyrighted material that merely repackages or republishes the original is unlikely to pass the test… If, on the other hand, the secondary use adds value to the original–if the quoted matter is used as raw material, transformed in the creation of new information, new aesthetics, new insights and understandings-- this is the very type of activity that the fair use doctrine intends to protect for the enrichment of society.”

Making a fan-edit interferes with point 2 of “exclusive rights”, however, if you made this fan-edit for yourself and you watch it only with your family, you’d have a very strong case that this is covered by “fair use” as you’re not interfering with anyones business. (See point 4 of fair use.)
This doesn’t hold up anymore when you share your edit with thousands of people. Besides the altered scenes, a fan-edit also consists of many scenes found in the original work, which interferes with point 3 of “fair use” and distributing your fan-edit therefore violates point 3 of “exclusive rights”, as you’re also providing the unaltered scenes to the public. (Obvisouly, you’re always interfering with point 2 of “fair use”.)
You could make the claim that your edit is transformative (see point 1 under “fair use”) and has additional value over the original work, but if this argument was easily accepted in court, we would’nt have to have this discussion right now. Fan-preservations can by definition not be transformative, as their goal is precisely not to change a work of art, so no luck in that departement.
The only thing this community has left is point 1 under “fair use”, which is “non-commercial use”, but that alone isn’t enough in court. And this is the only difference to the people selling fan-edits on ebay. And in the eyes of the law, this difference is minuscule. Drawing the attention of authorities to these sellers also means drawing their attention to the creators of fan-edits.

Excellent analysis.

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