Trademark, Copyright and Fan Sites

Filed as Guides on June 3, 2011 3:40 pm

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On June 1st, the blog and community site Canon Filmmakers announced that their site was coming to an end. However, it wasn’t because the owner of the site was retiring or a server catastrophe ate all of the posts and guides, instead, it was a legal threat from Canon itself forcing them to close and turn over their domain (Note: Link to likely to stop working shortly).

This wasn’t the first time Canon used or attempted to use Trademark to shut down a site about them. In 2009, for example, they sent a takedown notice to WordPress.com, which was hosting a site entitled “Fake Chuck Westfall”, which is a parody of the real-life Canon technical adviser Chuck Westfall and commonly lampoons the company. However, in that case, WordPress.com refused to remove the site and it remains online today.

Other sites have reported problems with Canon, especially when they’ve used the trademark in the domain itself, but Canon is far from the only company to have legal spats with their fans. Fan communities, it seems, are plagued by legal problems, both trademark and copyright related, and are among the most legally-risky sites to create.

However, this doesn’t mean you shouldn’t create a fan site, be it a blog or a community, just that you have to be aware of the risks and work to mitigate them.

What the Law Says

The law doesn’t make any significant distinctions between a fan site and any other kind of site that uses the intellectual property of another company. In short, a fan site can infringe on the copyrights and trademark of a company, author or other entity.

As we discussed with our primer on trademark, if you use a mark of another company in a way that causes confusion in the marketplace, it can be infringing. These marks can include logos, business names, slogans, product names, etc., anything that a business might use to identify itself in the market or might cause others to associate themselves with it unduly.

The same holds true for copyright. Though a non-commercial use for the purpose of providing commentary or criticism certainly has a decent amount of leeway in a fair use discussion. It is still more than possible for a fan site or community to infringe upon the copyright of the work they are promoting.

For example, a Harry Potter fan group can’t simply post copies of all the books on their site for free download and claim it to be OK because they are fans. They should expect a prompt legal notice from JK Rowling and/or her publishers.

However, the problem with fan sites isn’t really one of the law, it’s one of practicality and the way authors, musicians, companies, etc. approach them. Most are smart enough to realize that fan sites aren’t malicious infringers and need to be treated differently, even if the law says they don’t have to.

While this is a smart move, this is also where the confusion often creeps in.

Fan Sites, The Law and Real Life

The real problem with fan sites isn’t merely the legal aspect of them, it’s that virtually every company and creator has a different set of rules as to what fan sites can and can not do.

For example, where Canon is obviously out to try and stamp out every site that uses their mark, no matter how genuine their intentions, Star Trek actively links to interacts with fan sites in their community and Blizzard entertainment, the makers of World of Warcraft, even provide an official fan site kit to help fan sites get started and provide clear licensing terms.

In short, no two communities have the same set of rules. Where one artist or one company may routinely go to war with fan communities, often times pushing the boundaries of what the law actually says they can do, others may offer licenses and do everything they can to nurture them.

The result of this is that, while the law is fairly stable, the climate for fan sites is actually very unpredictable and unstable, especially since most fan sites don’t operate with any significant budget and aren’t in a position to fight even the most misguided and wrongheaded legal threats.

What Fan Sites Should Do

Since most fan sites aren’t in much of a position to fight back, the best thing that they can do is, before starting up, research the fan site policies of the subject they are targeting. This should include trademark and copyright policies when possible.

If you have any doubts, there’s usually a way to ask for permissions and guidance on these matters since most trademark and copyright policies include a means to obtain a license.

However, often times, your most powerful tool is actually Google itself. By simply searching for and understanding how other fan communities have been treated, you can most get a glimpse at what, most likely, will happen to you and what pitfalls you need to avoid.

It certainly isn’t a perfect system, especially if you’re creating a site that doesn’t already have an active fan community, but it’s a good place to start.

Bottom Line

In the end, since most fan sites can’t afford nor have the motivation to fight even false legal claims by whatever they are supporting, one’s time is usually best spent avoiding such conflicts rather than trying to prepare a legal defense. After all, do you want to spend time and effort supporting a product or company that’s just going to threaten you legally?

If you take a few moments before starting your site, or as soon as possible after setting it up, to understand the policies of the company whose work you’re a fan of and try to comply with them, you probably won’t have much to worry about. However, a lot of this problem is going to come down to creators and companies realizing the value of a robust fan community and working with them, even when there are legitimate intellectual property concerns.

A little cooperation can go a long way here and I wish more companies saw that. Then again, there is a real issue with some fan sites going to far in their zeal and actually causing harm to the things they love. So there is room for improvements on both sides.

After all, it does take two to make a team so it is important that, despite your good intentions, do your part to stay right with the law as well.

Your Questions

Have a question about the law and freelance writing? Either leave a comment below or contact me directly if you wish to keep the information private (However, please mention that it is a suggestion for The Blog Herald. This column will be determined largely by your suggestions and questions so let me know what you want to know about.

Disclosure

I am not an attorney and nothing in this article should be taken as legal advice.

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  1. By Person posted on January 17, 2014 at 12:38 pm
    Want an avatar? Get a gravatar! • You can link to this comment

    Hey.. I wanted to make an AT fan-site but I not sure if I can. I know how but I do not want CN sueing me. I tried googling this kind of thing but usually it just gives me more promotions on AT(Adventure time) toys and things I should buy. I cant really find any legal information other than a article saying the show is property of the network.

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