When Fans and Artists Collide

May 12, 2008 | By Jonathan Bailey | Filed Under Ethics, Features, Legal, copyright

Earlier this week, a fan of the British TV series Dr. Who was forced to take a portion of his site offline after receiving a cease and desist letter from the BBC. However, Mazzmatazz, the fan is question, was not posting clips onto YouTube or making pirated copies of DVDs, but rather, posting knitting patters to let other fans make their own Dr. Who characters.

In a similar, but much more famous case, J.K. Rowling has sued one of her fans, the author of the Harry Potter Lexicon site, in order to prevent a book from being published using information from her series.

These are just two examples of creators butting heads with their own fans over matters of copyright. Ever since the Internet made the fan site possible, it seems that copyright holders have struggled to find where to draw the line with their own fans and fans, for their part, have had difficulty finding just where that line is.

But how can such bloggers fan site creators avoid drawing the ire of those that they admire? What can copyright holders due to avoid needless clashing with their own fans? Sadly, copyright law is of little help in this area and the real key lies in making an honest attempt to resolve a very complicated matter.

The Problem With Fan Sites

Fan sites, by their very nature, use intellectual property from the entities they wish to pay homage to. Whether it is a trademarked name/logo or copyrighted content, it is very difficult to run a fan site without using at least some portions of the original works.

The problem is that this use of original works can often cross the line of what would be typically considered fair use and can delve into outright copyright infringement. Many common things fans do, such as create fan fictions of a popular series, buy domains containing the title of the work or build sites using original artwork, can be considered infringing activities.

Copyright holders, not wanting to hamper the thriving fan community, generally take a lenient attitude toward such infringements. Many, such as Blizzard with World of Warcraft, create fansite kits to promote the creation of such sites. Most also tolerate fan fiction for non-commercial purposes and others offer clips and passages for posting on fan sites and blogs.

But this balance can lead to serious problems down the road. Fans can go too far, believing they have ethical and legal rights that don’t exist, and copyright holders, used to setting terms for their audience, try to control every use they didn’t intend.

The result is that, as unpleasant as it is, authors, movie makers and musicians often find themselves in conflict with their fans over intellectual property. But while suing ones fans is never pleasant, nor good for publicity, it is a step that many feel they have to take.

Avoiding Conflict

Avoiding awkward situations, such as the one at the Harry Potter trial, requires an effort from both the copyright holders and their fans. Without cooperation from both sides, lines are inevitably going to be crossed and likely with dire consequences.

Specifically, copyright holders should consider the following:

Post Clear Guidelines: Fansite kits and other tools are great steps, but more important is a clear set of guidelines for how fan sites can use copyrighted material. Broad, easily understood and accessible guidelines are the most powerful tools for preventing awkward situations. It is almost always better to speak the unspoken rules than trust that they are understood.
Anticipate Unforeseen Uses: As technologies change, predict unforeseen uses of your content by fans and approach them with the same spirit the guidelines were created in. Being heavy-handed does no good when it is out of step with your other policies.
Communicate Openly: It is important to communicate openly with your fans. If one crosses a line, before sending a cease and desist, try to find a productive arrangement. Being hostile across the board only creates more tension.

Fans, of course, have their responsibilities as well. It is easy, in the rush of building a fan site or blog, to completely neglect the copyright and other intellectual property issues that can bring headaches later.

As such, I strongly recommend the following steps:

Avoid Trademarked Domains: The issues with trademark and domain names are notoriously sticky and can come back to haunt you at any time. Avoid slogans, names and titles that are protected under trademark law when picking your domain.
Follow Posted Guidelines: As copyright holders need to post such guidelines, fan sites need to adhere to them. Every fan community operates under a different set of rules and guidelines so it is important to read what information is available and adhere to it.
Avoid Commercial Use: Though commercial use may not be a huge factor in determining fair use, it is a line that many copyright holders would rather their fans not cross. Avoid running ads or selling merchandise without the explicit approval of the copyright holder.
Establish Contact: The most successful fan sites almost always establish contact with representatives from the copyright holder and have an ongoing dialog with them about copyright and other relevant matters. Such a contact can help the site in many different ways, not just copyright.
Follow the Community’s Lead: In the absence of good contact or published guidelines, locate sites in the community that have been around for some time and are very successful. Follow their rules for using copyrighted material and contact them to find out what they know. Though it is not a legal defense, most likely such sites are operating with at least an understanding from those holding the rights.

All in all, it comes down to a matter of mutual respect. Fans need to be aware of copyright and other intellectual property issues when building their sites and copyright holders need to understand that some element of infringement is necessary for building a good fan community. Striking a good balance is never easy, especially since these topics are always difficult to talk about, but that doesn’t make it any less important.

Conclusions

Fan sites have always been one of the more interesting, and difficult, areas of copyright law. It is an area where the law is often especially vague, emotions run high and conflict is almost predestined. Though the upcoming J.K. Rowling ruling may help shine some light on the legal standing of such fan works, most would prefer to work with the artists they enjoy, not hide from them in a legal gray area.

On the other side, copyright holders would much rather nurture the fan community and encourage the development of a fan presence as it helps promote their work and the related goods. This spirit of cooperation creates a rare opportunity for both sides to work together, something rarely seen in intellectual property law.

As such, it behooves both sides to take advantage of this good will and work together. Other copyright holders may never get that chance and most would feel lucky if their greatest intellectual property issue came from well-intended fans.

If both sides can approach these matters in good faith and discuss these issues like adults, then everyone can walk away happy and we never have to read about the big name artist taking her fan to court for crossing a perceived line.

About the author: Jonathan Bailey writes at Plagiarism Today, a site about plagiarism, content theft and copyright issues on the Web. He started Plagiarism Today about in 2005 as a way to help Webmasters going through content theft problems get accurate information and stay up to date on the rapidly-changing field. Since then, he has started offering consulting services to Webmasters and companies to help them devise practical content protection strategies and develop good copyright policies. Jonathan is not a lawyer and none of the information he provides should be taken as legal advice.

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