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"But you, Rosenberg...you REALLY got under my skin."
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January 09 2011

20th Century Fox send Cease & Desist letter to Firefly RPG club. Ajje Games' 'Serenity Leaf on the Wind' is now closed (via FireflyFans.net).

They must've been feeling nostalgic. 8 year itch in the ol' Fox trigger finger.
Back when Buffy Season 7 was on the air, they sent a letter to the owner of a fansite telling her to stop posting spoilers for the show.

http://www.angelicslayer.com/tbcs/spoilers.html

20th Century Fox also got a couple of fanfic sites closed too from what I recall.

On the plus side they did seem to be the only reason why Dollhouse got a second season and they did their best to shop Angel around when The WB cancelled the show.

So swings and roundabouts.
Wow, Fox classy as always! "Very truly yours" I liked that, it gave it a personal touch...
Over on FireflyFans.net there was a comment that Fox loses the rights to "Firefly" this year. Anyone know anything about that? Like if it's true and if so what it means?

******

And I never thought about it until now, but does Fox and/or Universal just choose not to pick on CSTS, does CSTS get clearance, or has the promotional art just never used anything they would consider "various trademarks, characters, images, designs, slogans and/or other distinctive creative elements of the Series"? Because I seem to remember a picture of Serenity being used...
CSTS works WITH Universal to make sure they are kept happy in this matter. Last year I think was the first year they gave permission to use images from the show (ie the ship crew likeness etc) in the logo. I notice that isn't mentioned in the rules for this year's competition, so I wonder if this was rescinded/the contact has changed?

CSTS organisers used to be told to be very careful with what they use in their promotional material (still are if they are still working from mine and Jen's organiser handbook/guide). There have probably been some items for sale in some cities which were a bit borderline, but as far as I know, no one has had any issues.

That said, I've never seen this roleplaying game that infringed the rights. Did they actually sell something? or was it just a bit of freeform storytelling type situation?
CSTS has been very clear about upholding copyright, and works hard to inform all participating cities of their responsibilities in respecting the rights of copyright holders. In some cases, depending on the licensing agreement for screening Serenity, it's possible to use promotional materials from Serenity to promote an event, but we are very clear that permission to use any Firefly the series stuff is out of bounds - particularly when it comes to submitting a design to the annual logo contest.

I'd be interested to know if the game in question was called out because Fox has previously issued the rights to make RPGs to Margaret Weis Productions (rights which I understand expire this year). If that's the case, it would make sense for Fox to be defending their copyright against an unauthorised RPG, given that it's a "defend 'em or lose 'em" situation (if I understand things correctly).
And this is why I don't get copyright law at all. The game doesn't appear to be a profit making game, judging from the site it is simply fans playing characters online with no money changing hands. They're hanging out with other fans and keeping the fandom alive, having a little fun and not hurting anyone.

If they were charging money to play or claiming that they were in some way affiliated with FOX then I'd understand them being taken down but the site clearly states at the bottom of the page that it's just fans having fun... something that if I remember correctly Joss himself has approved of, if I remember the story right (And I might not be) someone asked him what fans who miss his show should do and his response was "Let them write fanfiction".

Thankyou FOX, just another reason to wonder about your thought process
Back in the mid '90s, Fox became known in the PC game community for being the first big studio actively shutting down game modifications that were paying homage to Fox properties (the first being Aliens). This action caused the community to coin the term "Foxed" whenever a mod was given a C&D from its IP owner. Granted, Fox did have Aliens PC games in the works, so it's understandable why they did what they did to shut down the fan project, but at the same time it's slightly unnerving that nearly 15 years later, Fox is still Foxing people's work. At least they're consistent in protecting IP that they view is theirs, regardless of whatever they have going on in terms of its existence.
I've been a member of the game for almost five years on and off. It's a shame Fox has closed it down. From what we could tell, the only references to Fox's intellectual property were the use of words like "Firefly" and "Browncoat."

The game was a text based RP environment - similar to forum based RPs. The show's crew was off limits and never really brought up... It just took place in the same 'Verse by a bunch of us fans who loved the show.

Our community of fans has grown fairly large over the years; we've had a few real life meet ups in different parts of the world, and there was even a couple who met on the site and are now married.

It just frustrates me that the we show such love and admiration for the show and it's met with legal action. It frustrates me that we buy DVDs, Blu-Rays and other licensed gear... that we tell our friends - hell, we tell anyone - to do the same, and it's not enough for Fox.

Our little non-commercial venture did nothing to harm intellectual property. Really it was just the opposite. Word of Mouth is the most successful type of marketing; it's what has kept Firefly alive and selling discs all of these years. I guess Fox is keen on stopping that income though.
"Thankyou FOX, just another reason to wonder about your thought process"

Regarding copyrights and the why:

1. From a strict supply and demand POV, why should a consumer pay for a game if there are free ones out there that fulfill their need? From the POV of someone that has a commodity they want to sell or buy, exclusivity is important. It is one of the factors that can make something valuable. (Sort of the same point, really.)

2. Also a brand/image/identity is a very valuable thing. It is in the owner's best interest to prevent it from being diluted or corrupted or co-opted. The use of recognizable elements, causes the creation to become associated with whatever it is being used for. You can't get a changed identity back once it's gone. Not without a great passage of time and investment anyways. And maybe not even then, now that the the digital age of remember forever has arrived.

There's probably more whys, but that's what I can come up with on 4 hours of sleep.
Way to keep your franchises alive FOX...

@BreathesStory: Your reasons would make sense if FOX was selling it's own online RPG, which it is not.

Also a brand name/franchise is only worth something as long as it is remembered.

[ edited by Changeling on 2011-01-09 14:48 ]
Just when I thought Fox couldn't get any more evil *rolls eyes*
I'd imagine most of the "evil" you associate with Fox is with Fox Television, not 20th Century Fox (two separate entities).

...given that it's a "defend 'em or lose 'em" situation (if I understand things correctly).

Not with copyrights AFAIK, that only applies to trademarks (because part of the criteria for owning a trademark is it has to be seen to distinguish your product from others i.e. there has to be something distinctive about it as it relates to your thing - if it gets watered down sufficiently then you can lose it). Copyrights belong to the creator automatically though, unless explicitly stated otherwise (all that gubbins about sending a manuscript to yourself by registered post then leaving it sealed or lodging it with a bank or whatever is just so you can prove it's yours in court).

Sounds like more heavy-handed corporate bullshit really. If it's not for money then where's the harm ? And more to the point, why is it different/worse from the way we use 'Firefly' or character names on here ? Or the hundreds/thousands of clips etc. on YouTube and elsewhere ?
"@BreathesStory: Your reasons would make sense if FOX was selling it's own online RPG, which it is not."

Ah, but the potential to sell is there. And if they don't defend their rights then they can possibly lose the potential.

At least this is what how it is thought to work in the older marketing/selling model. Personally, I think that the model is changing and that fan created products help with hype and sustaining interest--basically what dog13000 said. :)
If the license is up for sale (or somebody else just picked it up), lawyers are told to do a sweep of the web to take down this kind of stuff. That's just how the biz works.

That said, there's one hilarious thing with Firefly - the split rights between Universal and 20th Century Fox...

With regards to the license expiry thing with regards to the show - I figure that's between FOX and Fox.
I can't help but think things like this are just legal guys doing their job. Seems like they want to earn their money doing something productive, not dissimilar to how journalists need to rush and make-up stories to meet the quota. Hmm.
I take it that they were making and distributing their own rule set for money, not playing the Weis version and recording their sessions on the interwebs?
If they were selling it then that's a different story (but from upthread comments my impression is they weren't). Could even be as simple as, if they'd called themselves something less company-ish than Ajje Games (like e.g. The Firefly RPG Society) then they might've been OK.
I actually think I hate 20th Century Fox more than FOX television because of situations like this.
Mean people suck.
Does anyone know what the legal status of noncommercial fanfic is? Is it distributed over the Internet by the forbearance of the copyright holders, or does it have some legal protection? If the latter, I wonder if a legal defense could be mounted in this instance on the basis that the game is nothing more than collaborative fanfic.
Fanfic isn't legal.
Fanfic and interactive storytelling like an RPG is completely legal under fair use doctrine as it has no impact on the financial future of the source material. Unfortunately, fair use doctrine is a murky section of the law and so rulings tend to vary by judge. The legal case of Campbell v. Acuff-Rose held that transformative uses receive special consideration in fair use analysis.

And most people don't want to take the money to defend themselves. The obvious solutions are a password-protected web site or a declaration of fair use and the correct copyright holder prominently placed on the work in question.

Our web site has the following declaration, for example:

We believe images, including images altered by an artist to create a derivative artwork, and song lyrics may appear in Watcher Junior under fair use under U.S. copyright law. Such images, quotations, music and lyrics are fair use because:

They are lower in resolution and quality than the original.
They do not limit the copyright owners' distribution rights.
They are being used in the context of academic analysis in a manner that contributes meaningfully to our culture.
They represent only a tiny fraction of the whole artwork.
They are hosted by our servers, and The Whedon Studies Association is a nonprofit organization.

See the journal of Transformative Works and Cultures for more. See: http://transformativeworks.org/faq with special attention to the legal subsection, which has definitions written in clear, layman language to most questions.
Fanfic and interactive storytelling like an RPG is completely legal under fair use doctrine

The problem with that is all big media companies, including 20th, disagree. The Organization for Transformative Works is made up of fanfic writers and fan vidders - unless anybody who actually owns the property agree, their opinion doesn't mean much.
[ETA:] and not only that but even the case they cite as support, Campbell vs Accuf Rose seems to be a parody defence which fanfic just isn't.[/ETA]

Fanfic and interactive storytelling like an RPG is completely legal under fair use doctrine as it has no impact on the financial future of the source material.

That's potentially misleading. As you say it's murky but fanfic and interactive storytelling aren't explicitly mentioned as fair use exemptions so they may be protected but are by no means guaranteed - "tolerated" is much closer than "completely legal".

Fair use (that's the US law but under UK law - where it's sometimes known as 'fair dealing' - the position's fairly similar) is intended to protect criticism, journalism, scholarly analysis and parodies from being prevented due to copyright (i.e. it's mainly about navigating the grey area between protecting copyright and infringing the right to free-speech). Most fanfics (let's call RPGs a sort of fanfic for simplicity) aren't parodies and they're obviously not journalism or scholarly analysis so I think you might have an uphill struggle arguing a fair use exemption.

IANAL though ;).

[ edited by Saje on 2011-01-09 19:52 ]
It's simply untrue that if something is used non-commercially it's automatically protected by fair use. Commerciality is an aspect of fair use, but not the only aspect.
I hate copyright law. It's so confusing.
The thing with fanfic - no-one's entirely sure if it's legal under fair use, because it's never been tested in court. If it was, we might be able to say for sure, but no-one wants to be a test case...
The other thing is, since fair use is decided on a case by case basis, even if someone went to court and won it wouldn't be a guarantee for all future fanfics so it'll never be cut and dried. Which means in a lot of cases, it'll come down to who can most afford to fight the case. And that's pretty much always going to be the corporations.

Basically, you can do it if you want, you just have to accept that the entities that own the copyright could choose to stop you at any time. If you're not willing to live with that limitation then write fiction with original characters and settings.
Lol; Well, do we have any Whedon-Fans with law degrees that want to do this one pro bono?
I know one who writes fan fic. :)
Joss; can we get your comment on a situation like this? Or maybe another executive producer.
I'm pretty violently opposed to the majority of copyright laws.

And even though non-profit works are not guaranteed to be fair use, they really should be. (Although that counts on the notion that we actually live in a rational and logical world, which I doubt more with each passing day.)

"It is the responsibility of every citizen to ignore dumb laws."
-Ian Clarke-
Campbell was about parody, it would be a serious misreading of the case to say it blanketly categorizes fanfic and fanart as fair use, as neither are even mentioned in the case.

For those, in the US, interested, it's 17 USC §107 that controls the definition of fair use, and it's judged in terms of all four prongs overall, not on any specific one.

I'm a big fan of intellectual property laws, because I'm a big fan of intellectual property; I'd like people to bother inventing couches with recliners in them, develop drugs, and make good movies and music, and none of these things would happen nearly as often or as well if the people making them had absolutely no way to profit from the fruits of their labor.

If there was no copyright law, after all, FOX wouldn't have bought a license to "Firefly", they'd have just waited until they found out the basic premise and made it themselves without any compensation whatsoever.
As I wrote, a lot of this is on a case by case basis, it's unsettled law, and the money involved deters most enforcement. Trademark infringement is also a part of the issue, so the question becomes whether the derivative work is likely to be confused for the original. It's very contextual. IANAL, but I am a media professor.

When court cases arise, four criteria are typically used to determine whether a fiction’s use of copyrighted material falls under “fair use”.

"the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;

the nature of the copyrighted work;

the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and

the effect of the use upon the potential market for or value of the copyrighted work.”

Regarding the last test, it is one of the reasons your VCR retained a record button (US manufacturers didn't make them. The case "Sony Corporation of America v. Universal City Studios, Inc. and Walt Disney Productions, 1984" determined that the burden of proof was on the copyright holder to show that "contributory infringement" had "demonstrable effect upon the potential market for, or the value of, the copyrighted work." Disney and Universal were unable to show that home taping of TV programs did that. And that's how "time shifting" (taping for later viewing) was first codified as a fair use, followed later by "space shifting."

Of course, Napster made much the same argument, among others, and failed. Sony must have had better lawyers.

Hope that helps...

As far as this example goes, clear notice of trademark and copyright ownership, the preemptive declaration of fair use and pass-word protecting are typical ways of protecting yourself. Fan vidders have been doing that for years.

And, incidentally, something seems to have happened to the page with the cease and desist letter. It's no longer up and goes straight to a web hosting page.

This is all very strange: it costs more in billable hours to send out a simple letter like that than the site could possibly cost the franchise. Of course, if you don't defend a trademark, under our system, you lose exclusive control over it, so it might be more of a pro forma thing to defend the Firefly and Browncoat trademarks. Speculation...
*sigh*....really? this is just stupid.
I'm pretty violently opposed to the majority of copyright laws. And even though non-profit works are not guaranteed to be fair use, they really should be.

This is a pretty ludicrous position. Part of the point of copyright law is to foster an environment in which people are encouraged to create, because they will own certain exclusive rights to what they create. That's hardly an illegitimate legal notion. Where the troubles start is when we keep extending the life of copyrights well beyond not only the life of the creator but well beyond their heirs and to an extent that allows corporations to control certain material for several decades -- something that arguably restrains creation and innovation rather than encouraging it.

When court cases arise, four criteria are typically used to determine whether a fiction’s use of copyrighted material falls under “fair use”.

"the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;

the nature of the copyrighted work;

the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and

the effect of the use upon the potential market for or value of the copyrighted work.”


All of which (as linked to upthread, by a couple of us now) is why it's somewhat misleading to say fanfic is "completely legal".

Campbell was about parody, it would be a serious misreading of the case to say it blanketly categorizes fanfic and fanart as fair use, as neither are even mentioned in the case.

For those, in the US, interested, it's 17 USC §107 that controls the definition of fair use, and it's judged in terms of all four prongs overall, not on any specific one.


Echo, echo... ;).

But yeah, let's not forget that copyright laws allow people to make a living from created works, without them creativity wouldn't be rewarded. Even the staunchest proponents of, for instance, free software are vigorous defenders of copyright, it's fundamental to the whole enterprise.

What's not so fundamental is allowing large corporations (via has-been 60s pop-stars) to lobby to change the law so that copyright lasts much longer than it should and in doing so twist it around to almost the opposite of its original purpose (which was to encourage the dissemination of ideas, information and created works). Flailing around to perpetuate a dying business model and in doing so curtail basic freedoms (including fair use provisions) i'm also not bonkers about. But copyright itself is essential - there was a poster on here called Pumps who said similar things about being against copyright and I always wanted to know what he or she would put in its place.


ETA: Most of which was said by The One True B!x while I nipped to the loo. Sometimes I wonder if the rest of the world really does just stop when i'm not at the computer, evidence has started to mount up against it.

[ edited by Saje on 2011-01-09 23:15 ]
And, incidentally, something seems to have happened to the page with the cease and desist letter. It's no longer up and goes straight to a web hosting page.


We may killed the site's bandwidth.
That's just what "they" want you to think.
You do know all the posters here are me don't you?
I know I am, i've had suspicions about everyone else but was never 100% certain.
But copyright itself is essential

I can agree with this. The heart or purpose of a copyright is a very good thing. Artistic expression is a valuable part of culture and society; the artists should most definitely be rewarded for their contributions. I can even see why corporations want a cut, seeing as they deliver the art to the masses. But when copyright law is extended to stifling something as benign as an RPG or (I live in dread of the day) fan fiction, that's when I have serious problems with it. The current (over-powered) incarnation of copyright is, in my eyes, a perversion of what it should be.

Where the troubles start is when we keep extending the life of copyrights well beyond not only the life of the creator but well beyond their heirs and to an extent that allows corporations to control certain material for several decades -- something that arguably restrains creation and innovation rather than encouraging it.

That sounds more like what I was going for. I say "majority" because I feel like a lot of the "protections" in place favor corporations or create an unreasonable longevity. Personally, I think that even the artist should not expect to profit from a work for his or her entire life. Also, a lot of the "infringements" under current copyright laws are truly negligible and it probably costs more to fight them than it would to let them continue.

There are some instances where I see the point of intellectual property laws, but in other instances I would say that people need to consider a different career if money is what they're after.

and none of these things would happen nearly as often or as well if the people making them had absolutely no way to profit from the fruits of their labor.

While I agree that intellectual property laws may lead to certain types of things being done more often, I disagree that money incentivizes doing things well (particularly creative endeavors). It doesn't necessarily do that. In a lot of cases, I think the monetary incentive is what leads to so much sub-par pseudo-creativity on the TV and radio stations.

Artistic and creative expression, especially and above most (but not all) other career paths, should be done for the love of one's craft and not for the potential profit in it. Those who have dollar signs in their eyes are not very likely to make good art.

As a starving artist an aspiring author (and also an amateur musician), I quickly learned that creativity is not meant to be used for money. Those with creative talent should not count on that as a way of putting bread on the table. Unless you are a corporation with incredible power to use as leverage, you are unlikely to find much money in art. Either find another career or get a day job (as a corporate monkey who sends out cease and desist letters to parties committing negligible ingringements of corporate copyrights).
fanfic is neither legal nor illegal; its use is what will make it legal or illegal. I can write fanfic for myself and break no law; if I post it publicly, I will.

Fanfic is also a derivative work, and in US law derivative works are indeed covered by copyright. It is not covered under fair use.
Saje, we seem to agree that copyright law as it applies in this case is under fair use doctrine in the US, contingent on the judge, decided by a case-by-case basis, and prohibitively expensive to defend yourself under. That's what I said in the first post.

I'm not sure why it irks you that I copied and pasted fair use's four tests into the thread rather than linking. I was responding to gossi and janef who posted confusion AFTER your link was posted.

I also did it to make crystal clear in the post I was writing that I was using the fourth fair use test. Most unpublished, unsold fic (either fanfic or interactive fic) without commercial advertisements is extremely unlikely to be guilty under the fourth test—causing a monetary loss to the copyright holder—or being a commercial enterprise—the second prong of the fair use test. In this case, the third substantiality issue doesn't even apply, as not even character names were used according to dog13000.

In short, Fox's stance on this particular issue seems to me to be about trademark infringement more than copyright.
rougerouge, I disagree. Again, the issue is that fanfic is a derivative use of an already copyrighted product. As a derivative use, it cannot be covered by fair use. You've quoted only part of Section 107, which defines some of the legal tests that may be used, but you did not provide the first part of that section: "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." Not creating a derivative work and posting it online.

Further, the law allows copyright to cover the following:
Copyrightable works include the following categories:
1. literary works 2. musical works, including any accompanying words 3. dramatic works, including any accompanying music 4. pantomimes and choreographic works 5. pictorial, graphic, and sculptural works 6. motion pictures and other audiovisual works 7. sound recordings 8.architectural works. So it does cover TV shows. And it is a copyright issue, not a trademark infringement.
This reminds me of - but is not exactly the same thing as - that spate of Fox cease and desist letters around the end of 2006, sent out to fans who'd made Firefly-related products, including:

Blue Sun Shirts:
Sept. 15, 2006

11th Hour:
Oct 24, 2006
Oct. 25, 2006
Nov. 3, 2006

If you're wondering what Joss thinks of similar fan efforts, here's a couple of quotes I found at the time, emblazoned on a couple of imaginary tee-shirts from my Imaginary Tee Shirts line, here and here. Apropos and funny, as you might expect.

Personally, I think this kind of reaction from Fox - though possibly within their rights, I wouldn't know - is both crappy and shortsighted - these fan games & artistic efforts do more good for Firefly DVD promotion than most anything they do themselves. In my everso humble opinion.
The 11th Hour thing was very different contextually, because Universal had basically been counting/relying on fans to promote Serenity, since Universal itself basically wasn't. To then turn around and send a bill to 11th for use of imagery, et cetera was basically hogwash, no matter how much they had the legal right to do so. (Also, for the record, that situation was resolved.)
Didn't a company have the rights to a "Firefly" MMOG around the time of the Backup Bash ...?
The rights to develop a Firefly MMO were granted to Multiverse in 2006. However the last news I've seen on that was from 2008 and that it was being delayed (there's an interview with Corey Bridges here).
Saje, we seem to agree that copyright law as it applies in this case is under fair use doctrine in the US, contingent on the judge, decided by a case-by-case basis, and prohibitively expensive to defend yourself under. That's what I said in the first post.

Yes you did. You also - in the same post - said fanfic and interactive fiction were "completely legal" which simply doesn't follow given the complexities you yourself have outlined roguerouge, it's misleading. So for clarity I pointed that out a second time. No offence was intended ;).

(it's just that talking about how complex it is and then implying that since fanfic may pass one or more of the fair use criteria it's therefore definitely protected is a mixed message)

I'm not sure why it irks you that I copied and pasted fair use's four tests into the thread rather than linking. I was responding to gossi and janef who posted confusion AFTER your link was posted.

Err, neither gossi nor janef have posted in this thread since I linked to the (US and UK) law on the matter so maybe you have a wire crossed ? ;)

The irksome aspect comes into it because reposting what had already been linked (twice) made me wonder if you (and KingofCretins for that matter) had read the previous posts - if we stop doing that then the conversation breaks down which kinda defeats the object of being here. Again, it wasn't intended to be a personal attack, more a (hopefully fairly gentle) reminder and if it was unnecessary in your case then I apologise.
@Simon: We may killed the site's bandwidth."

Sadly, it's not that simple. The hosting company made AJJEgames remove the game's subdomain. The notice is posted here now instead: http://www.ajjegames.com/LOTWnotice.html
Did they really? Thanks for the heads up, I'll put in your link.
Boo on all Foxes; Century and TV...

A couple of people mentioned Joss' opinion on FanFic, I do recall reading a long time ago about him telling fans to write fanfiction I don't remember where, but here are some links I found regarding that:

http://airawyn.fiddlergirl.com/fanficsupport.shtml

http://www.goodreads.com/author/quotes/18015.Joss_Whedon
A little late, but I have always thought there was a genuine case to be made for fanfic being a legit form of academic exploration. Maybe not all, but is there much difference between, say, writing a 3rd person essay about the similarities between the War of Independence and the Civil War and writing a fiction which shows Mal reading history of the Civil War and deriving inspiration or tactics?

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