The NCAA Case & Other IP Boundaries

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Fandom Law Discussed Here
in our COFFEE SHOP AU where everyone's interested in copyright & trademark law, fandom law, privacy and social media issues. Basically Snopes for IP and fan-creativity issues. Created and maintained by fandom lawyer/Board Certified Specialist in Intellectual Property Law Heidi Tandy aka travelingheidi/heidi8 with Hannah aka hllangel and other guestbloggers. Nothing we post here is legal advice. Ask us anything (but we won't give legal advice)

August 9, 2014

You may have seen a number of legal topics on tumblr and in the news over the last week:

Wikipedia is refusing to take down a “selfie” of a monkey, claiming that the monkey owns the copyright in the photo, even though under copyright law in the UK (where the photog claiming copyright is from) and in Indonesia (where the photo was taken), only natural persons (ie humans) and corporations can, under current law, hold a copyright - and under UK copyright law, the person who “creates” the photo is the copyright-holder, even if she or he didn’t push the button to capture the image.
The eschergirls have gone through a complicated and frankly (at least initially) unfair battle with artist Randy Queen, who chose to use tumblr’s DMCA process to demand tumblr take down posts on the eschergirls’ website, even though in doing so, he was claiming - but it’s all okay now, because they actually had the law on their side. In other words, it’s legal to include images or clips or quotes from someone’s work to comment on them, criticize them, or report on/about/regarding them.
The ruling re NCAA players’ images and names, which says that as of 2016, NCAA players will be able to be paid for the use of their likeness and names in commercial content such as video games, apps and calendars - and yes the ruling will apply to male and female athletes.
Twitch incorporated a YouTube-like music-finding-and-removing process on archived content on its site, upsetting gamers, uploaders and users alike, because so much content on Twitch includes audio from games - including music that was getting flagged by their new monitoring system. Twitch has since pulled back on some of its original plans, and have removed the maximum time limit on highlights, and added in an appeal button (that, per the DMCA really should have been there from the start) to deal with things that may have been incorrectly flagged for copyright infringement.

What do all these topics have in common?

A few things:

A. Noncommercial use of someone else’s content - whether it’s copyrighted or contains a trademark - often not infringement. You can still take photos of NCAA players - or low-or-medium-resolution images of an artist’s art - and share them on facebook or tumblr, print them in a newspaper or include them in a vlog. However, the minute you put those works in a calendar that’s sold at the mall or include them on a commercially sold DVD, there may be licensing issues at stake.

B. Listening to your userbase is important - but what may be more vital to a vibrant community is thinking through your actions before you take them. We’ve posted recently about how important it is to have an up to date Terms of Use - but Twitch still hasn’t updated its ToU, which means it doesn’t apply correctly to how the site is operating these days. Twitch made a decision about audio without dealing with all the possible ramifications, and Mr Queen jumped to a DMCA complaint without really considering what rights he was legally able to restrict regarding his work. And the NCAA made a decision that it owned player images, names and faces and could do whatever they wanted with them - and the players themselves could do nothing with them - which does nothing to further “amateurism” and pisses off the players, their friends and families, and their fans.

C. The photog whose camera was used by a monkey to take a selfie should continue to argue that monkeys can’t hold copyright under either Indonesian or British law, but stop stressing about it and find new ways to monetize his newfound fame, perhaps by selling the rights to his story - although not the monkey’s - to the BBC; it would make for a fun episode of Doctor Who.

D. If you get a DMCA notice, that doesn’t necessarily mean that you’re in the wrong. Ask the community here on tumblr, or ask on Twitter or FB, or drop us an Ask, because sometimes Twitch will catch and take down something that’s Fair Use, or an artist will claim copyright when you’re engaging in commentary about his or her work, or the NCAA will say they own your face (though they don’t).

And if you’re coming to DragonCon, I’m (this is Heidi) hoping to host an FYeahCopyright meetup sometime on Saturday, depending on my schedule, to chat about legal issues and fandom, possibly with chocolate nachos to fuel our discussion. More info when I have it!

10:47am | URL: https://tmblr.co/ZlK2rs1NnmEaW

(Notes: 41)