Fan Films and Copyrights

NullUnit
NullUnit Website User Posts: 791 Just Starting Out
So, what is the deal with fan films and copyrights? Fxhome people have made Batman and Deus Ex fan films, whats the story with using music or imagery from the source material? And whats the disclaimer that a lot of fan films use? The one about how I don't own any of the copyrights and this is a fan film... It would be great to hear from someone whose dealt with this. 

Comments

  • ESPictures
    ESPictures Website User Posts: 533 Just Starting Out
    edited March 2013
    The important thing to remember about fan films is that you are completely at the mercy of the copyright holder.  So that little fan film that you poured your heart and soul into making can be taken down at any time.  It all depends on the copyright holder.  George Lucas was cool with people doing Star Wars fan films and let the fans know that as long as they weren't for profit, they could make them.  But will Disney have the same attitude?  I would guess not.  CBS/Paramount has traditionally looked the other way on Star Trek fan films.  But they've never given permission for any to be done either.  People just make them and hope that because they aren't making any money off them, CBS will continue to not care. 
    As for people sticking a disclaimer on it, that's completely worthless.  If the copyright holder decides to sue you for infringement and damages, it does nothing to protect you from liability. 
    My policy is either to do commissioned work only for the copyright holder or to do original material.
    I want rights to anything I create.  I'd hate to make something really good and then have it destroyed or never see the light of day.
    There are a few cases, like Dan Trachtenberg where he made a fan film for Portal and it was so well done that the video game company was looking at him to make a full length movie.  But that's a million to one shot, not the rule.
  • guitar74
    guitar74 Website User Posts: 506
    CopyRights are a tricky thing when it comes to material that someone owns the rights to.  You could always change things in your movie and stay away the origianl copyrighted material.  Other than that, It all depends on the copyright holder.
    That Portal Short was a great.
  • MichaelJames
    MichaelJames Website User Posts: 2,038 Enthusiast
    @Null look up fair use.  You can use copy written material if you are making original content that you do not profit from.  We've talked about this before on here and there's any number of beliefs related to this.  The big thing I would ask is to look at the factual information.
    http://www.youtube.com/watch?v=CJn_jC4FNDo
  • Har
    Har Website User Posts: 401 Enthusiast
    edited March 2013
    And here's the US LOC's official statements on Fair Use, which is about as factual as you're going to get as far as U.S. law:

     


     

    Points worth noting (emphasis added):

     

    "The distinction between what is fair use and what is infringement in a particular case will not always be clear or easily defined. There is no specific number of words, lines, or notes that may safely be taken without permission. Acknowledging the source of the copyrighted material does not substitute for obtaining permission."

     

    "The safest course is to get permission from the copyright owner before using copyrighted material. The Copyright Office cannot give this permission.

     

    When it is impracticable to obtain permission, you should consider avoiding the use of copyrighted material unless you are confident that the doctrine of fair use would apply to the situation. The Copyright Office can neither determine whether a particular use may be considered fair nor advise on possible copyright violations. If there is any doubt, it is advisable to consult an attorney."

     

    Also note that while it does mention "The 1961 Report of the Register of Copyrights on the General Revision of the U.S. Copyright Law cites examples of activities that courts have regarded as fair use: ... use in a parody of some of the content of the work parodied..." - it's not a cut-and-dried thing: they're citing it as an example of what has worked in the past. But that does not mean that by law, ALL uses in parodies therefore are fine to create in the name of Fair Trade.
    What it comes down to is: as far as U.S. copyright law is concerned, the copyright owner will ultimately have the final say, and not the Copyright Office. And no amount of "but I clearly stated I'm not making any profit on it!" will change that fact if the copyright owner ultimately decides that he/she doesn't like what you did. And if said copyright owner is a big enough name to afford Monster Lawyers From Hell Who've Done This Dance Before, well...

     

    Some copyright owners might be cool with it, some might not - there is no guarantee either way. Using examples of what other people have successfully gotten away with in the name of Fair Use really only proves that it worked for that one specific instance, and does not guarantee repeated instances.
    In a best case scenario, if you cite Fair Use when confronted about the matter, the copyright owner will maybe think about it and ultimately give you the go-ahead...but understand that the copyright owner is in no way shape or form legally obliged to not go after you just because you cited Fair Use. 

     

    Of course, anyone can certainly give it a try and risk it - and whatever ultimately happens will be entirely in your hands as far as legal fees, etc if the copyright owner decides to make an example of you.

     

    FWIW: I have worked directly with various corporate legal counsel in copyright related instances in the past, so I do have a degree of experience with this subject and am not just talking out of my ass.  ;)

    I've seen it go well...and I've seen it go horribly wrong, and have had to be the one to give my immediate supervisors - the ones who made the various "fatal" mistakes - the bad news. It's not fun, believe me. 

     

    The bottom line with all such things really is this: if you want to risk it, always be prepared for the worst case scenario.
    Don't assume that you're "too small a target" for a copyright owner to want to make an example of...remember that we're living in a world where entities like the RIAA has gone after children and grandmothers for downloading MP3s, and gone after guys doing free Shoutcast broadcasts from their Mom's basements for retroactive PRO fees for the music they might've played just one single time (one of the many reasons why I ultimately resigned as an ASCAP writer/publisher member myself). 

     

    It's up to you as to whether you want to roll those dice or not.  :)

  • MichaelJames
    MichaelJames Website User Posts: 2,038 Enthusiast
    @Har well Disney has never been really known for being cool with illegal products using their likenesses but again that video has 14 millions views... so I think youtube and Disney must know of it. Also here is a exert from that same site you used Har.
    Section 107 contains a list of the various purposes for which the reproduction of a particular work may be considered fair, such as criticism, comment, news reporting, teaching, scholarship, and research. Section 107 also sets out four factors to be considered in determining whether or not a particular use is fair.
    1. The purpose and character of the use, including whether such use is of commercial nature or is for nonprofit educational purposes
    2. The nature of the copyrighted work
    3. The amount and substantiality of the portion used in relation to the copyrighted work as a whole
    4. The effect of the use upon the potential market for, or value of, the copyrighted work
  • Har
    Har Website User Posts: 401 Enthusiast
    edited April 2013
    Right, but again: they're pointing that out as a guideline for possible consideration, and/or of things that have occurred in the past. But that's the thing: the US Copyright Office doesn't have any hard/fast laws concerning  Fair Use that could be used as a serious defense against a copyright owner unhappy with how his/her works have been used. Each of those 4 bullet points could be used as an argument, but guarantees nothing as far as the final outcome.
    Lawyers, being the way they are - love to go after one or two words...in this particular case (underline added):

     

    Section 107 contains a list of the various purposes for which the reproduction of a particular work may be considered fair


    In the Wonderful World of Legalese, that "may" - as opposed to "will" - can make all the difference, in that it renders the concept as optional, not mandatory....it may or may not happen. 
    It still comes down to fact that the Copyright Office here is saying that in the end - they will hold no jurisdiction as far as the final outcome of a potential legal case ("The Copyright Office cannot give this permission...The Copyright Office can neither determine whether a particular use may be considered fair nor advise on possible copyright violations"), only offer potential guidelines. In other words: they wash their hands of it after that point, and it comes down to the Battle of The Lawyers. 


    You're right, both YouTube and Disney do know of it of course. But if Disney suddenly changes its mind about something, unless they've specifically stated some kind of legal allowance...there's nothing stopping them from backpedaling. Just because they're allowing it now, doesn't mean they won't decide to change their mind at some point in the future. There's a chance they never will - some copyright owners will see these kinds of things as actually working in their favor and bringing them more attention (rightly so) - but as we've all seen: sadly, not every copyright holder holds to that rationale.
    And just because one copyright holder might be willing to, doesn't guarantee that they all will in a push-comes-to-shove situation. Someone being legally confronted by a copyright holder trying to use a defense of "But look, George Lucas was cool with people doing it with HIS stuff!' might have problems making that work in a court of law.

  • Har
    Har Website User Posts: 401 Enthusiast
    edited April 2013
    Really, my only point is: if someone wants to risk something like this - understand what could happen. :)  
    It very well may never go badly at all...but there's no guarantees. As MichaelJames pointed out, a video could have millions of views and zero repercussions with one copyright holder. But the thing is, the same action could royally piss off another copyright holder when seen by only a few people and they'll leap for the throat. This is not an easily predictable thing (unless you're talking the other direction concerning copyright holders already known for such things - Metallica vs. Napster, anyone?  ;)  ).
    In the end: sure, you could hire an excellent lawyer in such a case, but would the potential legal fees for such a legal battle be worth it to you to prove that point? Again: it's down to you to decide if it's worth it to you or not.  :) 
  • MichaelJames
    MichaelJames Website User Posts: 2,038 Enthusiast
    edited April 2013
    Yea they use the term may because its to stipulate that you have to meet conditions.  They can't just put a blanket will out there. 
    Also Youtube runs filters based on the content that companies like Disney provide to flag content that may be in violation. 
    I know people are either overly cautious or overly caviler about this topic online so it adds to the confusion.  In the end do what you feel is right is the best advice anyone can give you based on all the information  directly from the governments website.
    There must be some flexibility to this because there's so much content that is out there.    The Dark Knight Binges is a clear example of this.  Its a parody on a wildly successful movie's trailer.  
    The default response seems to be get a lawyer but I think there is more to it then just leaving it at that.
  • Har
    Har Website User Posts: 401 Enthusiast
    edited April 2013
    Exactly - it's those conditions that are up for grabs. It can go either way, and the CO is basically saying: "there ya go kids, have fun...buh-bye, now get off my lawn."  :)
  • guitar74
    guitar74 Website User Posts: 506
    The whole fair uese practice is very shaky at best.  I've seen videos and etc where people try to use the fair use act, Everytime I see one of those videos, it is violating copyrights somehow or another.  I hav fllled so many copyright forms out for people and myself.  The Real Copyright law is confusing at best, there is a lot to it, but it always came down to this here. If you are Not the original artist or co-artist, then you have to get premission from the copyright holder to make anything from it.  Like back long time ago, Vanilla Ice had a song (Ice ice baby) The bass guitar to that the chours of the ice ice baby song was a song actually written by a band Queen.  The Band Queen got a lawyer and they won millions of dollars over the copyright.  There has been a lot of infringing over the years.
    Fair use, You can take a movie trailer, use it as a review for only so long.  There are other uses of fair use, but in the end, the copyright holder can have it taken down on any site.  If you dont make money off of it, then I dont see how they can sue you over it.
    There has been a lot of tallk about copyrights and etc.  You know the law, then Fair use wont work in this case.
    Companies like Ascap, I'm glad they are there to help people so their work is not used without their consent.
  • MatthiasClaflin
    MatthiasClaflin Website User Posts: 674 Just Starting Out
    edited April 2013
    Null Unit,
    I think it is important to remember, as far as I know, no one on these forums are registered US Attorney's and therefore can't give you legal advice. If you really want to know about the law it is best to consult a practicing attorney. I know this topic has sparked controversy in the past and that being said, be careful with what you believe or don't believe. Make sure you do all the fact checking before believing anyone's post.
    Something worth remembering is that using someone's copywritten material for something you make no money off of, is still dangerous. If you gain some kind of fame off of it, and then later make money, there is a chance they will sue arguing that the money you make is only because of the fame you received from their material. Also if you in anyway slander/mock the material they could likely sue you for that as well. It really isn't all about the money.
  • Har
    Har Website User Posts: 401 Enthusiast
    edited April 2013
    Null Unit,
    I think it is important to remember, as far as I know, no one on these forums are registered US Attorney's and therefore can't give you legal advice. If you really want to know about the law it is best to consult a practicing attorney. I know this topic has sparked controversy in the past and that being said, be careful with what you believe or don't believe. Make sure you do all the fact checking before believing anyone's post.

    Yep, agree completely. The CO itself says it again and again: "If there is any doubt, it is advisable to consult an attorney"...and thinking there isn't any doubt because of something you read here on a forum or saw on a YouTube video could be setting yourself up for a fall. Best and only real way to be totally sure - consult a practicing attorney experienced with copyright law.  :)
    (and that specific experience can be key - your uncle the ambulance-chasing accident lawyer might technically be a legal attorney, but might not really know jack about copyright law itself  ;) )

  • MichaelJames
    MichaelJames Website User Posts: 2,038 Enthusiast
    edited April 2013
    I have an idea for a hitfilm kick starter.  Legal advice from a qualified practicing lawyer on copyright laws.

    or
    People could talk to a lawyer which specializes in media rights for free via phone. 


    I've spoken to a practicing lawyer on the subject at a San Diego based non profit which specializes in media rights.  So if you have questions ranging from product placements or song use or general copyright law questions you can talk with them.  Also if you have a product that you want to avoid getting sued over they can review it and provide you with a nice list of violations in your film
    http://www.newmediarights.org/taxonomy/term/546
    Phone Number
    619-591-8870
    We are available from 9am - 5pm, Monday through Friday, Pacific Time
    Mailing Address
    New Media Rights
    4685 Convoy St. #210
    San Diego, CA 92111
    Acknowledgements
    New Media Rights is a program of California Western School of Law



    Here is a link to their website on frequently asked copyright laws http://www.newmediarights.org/frequently_asked_questions_about_copyright_law_book

    So now when someone says speak with a lawyer on the subject matter you know where to find one who deals exclusively in this for free.

     



     

  • OrangePekoe
    OrangePekoe Website User Posts: 478
    Just out of curiosity, at what point is a film considered a fan film?  Anything that involves "ideas" or concepts from another film/game etc? 
    For example, if someone uses the concept of a fireflower from mario does that automatically put it into the fan film category? 
  • AxelWilkinson
    AxelWilkinson Staff Administrator, Imerge Beta Tester, HitFilm Beta Tester Posts: 5,247 Staff
    A fan film is made specifically because you are a fan of the origin material, and as an homage to that material.  Plagiarism itself doesn't make a film a fan film.  Nor does borrowing ideas or talking inspiration from earlier works.
  • OrangePekoe
    OrangePekoe Website User Posts: 478

    Thanks Axel!
     

    A fan film is made specifically because you are a fan of the origin material, and as an homage to that material.  Plagiarism itself doesn't make a film a fan film.  Nor does borrowing ideas or talking inspiration from earlier works.
  • NullUnit
    NullUnit Website User Posts: 791 Just Starting Out
    Thanks for the replies. I think I'm going to go ahead with it. I wrote out a one page synopsis (it will probably be a 5 minute short) and I gotta do it. Its been rattling around my head for months now. Hopefully it will be allowed to stay up online. In terms of the law, lawyers usually send a "cease and desist' letter before they start  getting serious, so I'll take it down if I get one of those.
  • SimonKJones
    SimonKJones Moderator Website User, HitFilm Beta Tester Posts: 4,450 Enthusiast
    Generally speaking, an individual who has made a fanfilm is unlikely to have actual legal action taken against them. The worst that is likely to happen is a C&D, and the video taken down. Which would be annoying if you've put lots of work into it, but you're not going to wind up in jail or faced with a giant fine.
    Though I'm not a lawyer so your mileage may vary. :)
    With regards to Knightfall and Extraction Protocol, you'll note that at no point do they directly reference any particular third party IP. Knightfall comes closest in terms of costume, but no names are used.
    Extraction Protocol is actually very stand-alone. It takes cues from the cyberpunk genre and it's general visual style is heavily inspired by the Human Revolution game, of course, but in terms of story and character it isn't too close. Just as the Deus Ex games have taken a ton of inspiration from William Gibson and Neal Stephenson novels - science fiction and fantasy are two genres in particular which have a whirling pool of ideas that get re-used and re-jiggled all the time.
    I'd love to do another cyberpunk movie, though I'd make much more individual. I actually don't personally see the point of fanfilms, other than using the brand to get more awareness. The inability to properly promote the movie due to the copyright issues mentioned above I find too restricting.
    One area that is interesting is to look at the work of FreddieW and Corridor Digital. A huge amount of their channel videos are basically fanfilms, albeit imaginative interpretations and extremely well produced. But in their cases they're actively making a living off their channels through ad revenue. When a lot of that ad revenue comes about due to associations with Minecraft, Mario, or Call of Duty, the waters start to get ever muddier.
  • NullUnit
    NullUnit Website User Posts: 791 Just Starting Out
    edited April 2013
    I've never made a fan film before and it usually wouldn't occure to me to do one but, the idea I have involves two of my all-time favorite films and will connect them together in a way that I don't think has been done before. And I'm pretty sure I can pull it off the way I see it in my head. So, Im willing to take the risk that it will be taken down but, I think the odds are good that it will be allowed to stay up. Andrew's (I think thats who it is, hes on this forum) short The Dark Knight Binges, while its clearly a quality made short it's associating Batman with binge drinking would, I thnk, be a problem for the copyright holders. Yet its up and has a ton of hits. It also uses the name Batman and assets from the film. I think its because fan films end up being free advertising for the original IP and a lot of studios realize this but, there is a clear risk to making a fan film.
  • Keegan
    Keegan Website User Posts: 294 Just Starting Out
    If I were a rights holder, I would look at it this way:
    Someone is generating content at no charge to me that promotes the awareness of my original content. They are making a tiny amount of money off of it that isn't affecting my income negatively (Nobody watches Star Wars Fan films INSTEAD of Star Wars). 
    From what I have read/heard, a lot of small studios and game developers welcome short films based on their productions. Its basically free advertising!
  • SimonKJones
    SimonKJones Moderator Website User, HitFilm Beta Tester Posts: 4,450 Enthusiast
    Yeah, I recall back when we made Extraction Protocol that Eidos Montreal actually posted it on the official Deus Ex Facebook page. There's definitely been an attitudinal shift in the last few years which makes a pleasant change from the early/mid-2000s when everybody was getting C&Ds left, right and centre.
  • Andrew
    Andrew Website User Posts: 379 Enthusiast
    edited April 2013
    Ubisoft and (I think) Paramount at the time sent my 15-year-old self an interesting letter after we bought the domain name splintercellmovie.com several, several years ago- but then generally let it go once they realized we were kids making stuff for fun. (Wait til they see our new Splinter Cell short. ;) )
    The attitudinal shift is important to note. And, as with anything, as long as you're sensible about what you're doing, not profiting, and doing something for fun/passion- people are very hard-pressed to stop or want to stop you. I know this is a legal representation of things, but it's important to note: People respect and appreciate their work being respected and appreciated via fanfilms.
    So long as you know the dangers, and don't overly publicize, though, you're generally OK.
  • Ben
    Ben Website User Posts: 51
    Yeah, I recall back when we made Extraction Protocol that Eidos Montreal actually posted it on the official Deus Ex Facebook page. There's definitely been an attitudinal shift in the last few years which makes a pleasant change from the early/mid-2000s when everybody was getting C&Ds left, right and centre.

    Funny thing, dunno if you were referencing the first two in the Deus Ex franchise, but my game-writing professor last year was the head writer (and co-creator) of those games, and mentioned that expansion of the story into branches and other narrative threads -- like fanfilms-- was what he saw as being 'important' about games.
    That, because the writing of a game (in only some of the best games) is what establishes it as great (and not particularly the gameplay or the graphics, et al) things like fanfilms should be encourage, because they promote the expansion of story; and put an emphasis on writing, which he thinks more games sorely need.
    Sorry, just had to throw that tidbit out there -- I know a lot of people were on the Deus Ex train because of the most recent one, but the first 2000 one in particular has some of the best writing of any game ever, and I by chance got to spend a semester in a ten-person class talking with its creator about it, haha.

  • SimonKJones
    SimonKJones Moderator Website User, HitFilm Beta Tester Posts: 4,450 Enthusiast
    edited April 2013
    Sheldon Pacotti was one of your lecturers? Consider me officially jealous!
    Extraction Protocol was most directly referencing the new one, but as an old-time PC gamer it's the original Deus Ex that I remember most fondly. It's important to note that game's writing in the context of when it was released, as well - it's efforts towards expansive storytelling are still impressive today and it was released back in 2000. No wonder it's still recognised as a classic. That said, the story is a bizarre hodge-podge of X-Files/millennium angst, every conspiracy theory in the book and some sledgehammer politics: but it was deftly told and, crucially, that it included politics at all, even in an unsubtle manner, was revolutionary at the time. Hell, how often do you see a game tackle political issues in an intelligent even today? It's pretty rare.
    I'm sure you were paraphrasing somewhat, but I do quite strongly disagree with the idea that writing is what makes a game great. And that's coming from me - I love authored, single player games. And while great writing can = great game (Walking Dead succeeds through its writing rather than through any game activities), you can equally have a great game with minimal or even no writing (specifically, I'm thinking of non-authored games whereby the narrator is directly the player, such as Minecraft).
    One of the fascinating aspects of games as a medium is that they're pretty much the first medium that can be directly non-authored and enable emergent storytelling through player actions. Sure, every medium has the possibility of viewer interpretation, separate to the intent of the author, but gaming takes it to an interesting new area.
    Anyway, yes. Jealousy is me. Pacotti has also been working on some interesting storytelling tools of late: http://www.rockpapershotgun.com/2012/12/20/deus-ex-writer-creates-tool-for-teaching-development/
  • TheRealJayWalker
    TheRealJayWalker Website User Posts: 219
    Simon, interesting point you make about Corridor Digital in that they make a living via revenue streams on their YT channel etc.  I was invited to apply for this with YT about 3 years ago due to my hit count but never persued it due to my vids being SW related and Lucasfilm specifying that you can make films on the IP but not make money off it.
    I work for a law firm and I think we have specialists in copywriting, maybe I should do some digging
  • Wolveryan
    Wolveryan Website User Posts: 2
    I was going to use some SAG actors in an extremely low budget (900 dollars )marvel parody film.  I know the SAG new media contract covers them doing non union work for a one day shoot, but if they are playing Matrvel characters, does that propose another barrier?
    I see tons of fan films out there, and I know Marvel can take them down- but Im not sure if any of the actors in them are SAG .
    Please advise and thanks in advance:)
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