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July 21 2012

20th Century Fox freezes a fan's CafePress store because of Buffy related items. Question is, is it fair?

Hmmmmm. Seems fishy to me. Some of that stuff couldn't possible copywritten. If it is, MOST of CafePress would be taken down.
If you're going to try and make money from a franchise, don't be surprised when the franchise holders turn round and say no.
In the end, rightly or wrongly given the specifics of each situation, you probably have to be satisfied they just sent a C&D and not a bill.
If you try to make money off someone else's IP without permission, you deserve to be shut down and to forfeit all proceeds gained from your theft.
Actually, those quotes, likenesses, etc. are copyrighted. That store violated copyright and trademark laws so I'm not surprised it got shut down.
You cannot copyright a quote. The most you'd be able to do would be to trademark it. From Wiki Answers:

"You don't. Names, titles, slogans, logos, and common words/phrases are not eligible for copyright protection. In some cases, however, they can be registered as trademarks."

Because, really, how are they going to claim that Joss created the line "I've got a theory"? So...Einstein never said it? Alexander Graham Bell, Madame Curie, Stephen Hawking never uttered to words "I have a theory" or even "I'd like to test that theory"? Sorry, FOX, but this time you lose.

"Cowabunga" existed long before Bart Simpson ever uttered it. Or even any of the Teenage Mutant Ninja Turtles. Had Bart changed it to "cowabungee!" then it could become a trademarked word, since it was created specifically for that character. But phrases created from common words cannot be copyrighted.
Welcome to the chilling effect of our over-the-top "intellectual property" laws. This affects not only the arts but also day-to-day human life. Patents, copyright and tademark law are far too broad and stultifying.

For those who are interested, read Lawrence Lessig on the topic.
Good luck arguing Wiki Answers with lawyers from 20th Century Fox, however.

[ edited by gossi on 2012-07-21 19:20 ]
I think some of the things in the shop can be argued as intellectual property, and the rest are just Fox scaring this person into taking them off.

I was under the impression that you can't copyright a font? I've done a bit of research on the subject and that's what I've found. Because if that's true then Fox has a case against Disney. We have this Mickey Mouse doll from Halloween in Disney World and the font in which "Boo to You!" is written on his hat is clearly the Buffy logo font - you can immediately tell from the distinctive capital B.
So how does a site like get around these kinds of copyright issues?
I agree with ShadowQuest but I also know that gossi is right. It's a bummer but it's what Fox does. I kind of think it's the reason that almost all of the comics and merchandise related to Firefly (Fox) are almost always under Serenity (Universal) < The preceding is my own theory and not something I state as fact> Fox doesn't like anyone making evin a penny off of anything they own. Never have, never will!
We went through all this several years ago when (our dearly missed) 11thHour got shut down by Fox for Firefly/Serenity related items. In the San Francisco area a copyright/trademark Lawyer had a special meet up for all the local fans so that we could understand the laws, and the fact is that it is impossible to make a penny off of anything made by a corporation. If you write a scholarly paper then you can quote, but no one will believe a t-shirt is a scholarly paper. And if you are doing satire you can take a lot from the copyrighted material (like Saturday Night Live does all the time), but if you are claiming satire on your money making CafePress site then you'll need your own lawyers to defend you, because CafePress won't.
Saying that, I've seen 20th go after sites that have hosted fan fic, fan art and even spoilers. It's a deeply unpleasant corporate tactics.

But if you do want your fan designs to be used by other fans then my solution would be to put your designs online for free. And then give instructions on how to put it a t-shirt etc. No one can accuse you of making money that way.
Serenity comics were because Fox sold the license to Universal as part of the movie franchise rights. However, Universal hasn't made a sequel in time, so the new comics are licensed by Fox again (Universal no longer own that 'verse).

Licensing is a billion dollar business, and Fox aggressively defends their position. They do, for example, hold 10 active trademarks around the Buffy logo, including typeface and usage restrictions.

Of course, that's not to say licensing departments don't sometimes overstep the mark. Universal did that with Serenity, if anybody remembers.

One thing of note - in the link here, the author of the shirts complains they were making "a lot" of money from one of the shirts. That's why companies have evil lawyers, unfortunately.
But if you do want your fan designs to be used by other fans then my solution would be to put your designs online for free. And then give instructions on how to put it a t-shirt etc. No one can accuse you of making money that way.
Alternatively, brands could make a deal with CafePress (as some brands have done, I think, although I've never looked at the specifics) and structure it so that any revenue from fan-created t-shirts is split between the license holder and the fan creator. I don't understand what's to be lost by doing it that way.

ETA that the reason the 11th Hour thing became, well, a thing, is that half of Universal's strategy for promoting Serenity was to depend upon the fans, and then Uni licensing turned around and sent her a bill. It was something of a special case.

[ edited by The One True b!X on 2012-07-21 19:48 ]
No matter how you slice it, whining about not be able to make money off someone else's property will never EVER stand up legally. It's not yours. Create something that is and sell that. This is not complicated but the excuses and justifications sure are. :)
I guess whether it's legal or not, I'd certainly feel uncomfortable making money off of any Buffy related merchandise or artwork I created. I mean I'm not exactly sympathetic to Fox and I understand the urge to create stuff like this and myself read a lot of fanfic, but I wouldn't ever try to sell it.
I've seen 20th go after sites that have hosted fan fic, fan art and even spoilers.

I (who am not a lawyer but am married to one) believe fan fic and fan art are technically derivative works which is why Fox is so comfortable going after them. It's a jerk move, but still within their exclusive rights.

In terms of legal stuff, I think it's pretty clear Fox is on the right side of both the law and the legal system (i. e., having more money for better lawyers).

Morally and economically, I think if there's a market like this that they want a piece of, the smarter move is to sell some officially licensed merch so people don't have to look elsewhere, or to hire/contract fans to create it.
No matter how you slice it, whining about not be able to make money off someone else's property will never EVER stand up legally.

Yeah, if you assume that the words in question are indeed Fox's property, but that's the whole argument- "I've got a theory" isn't anyone's property. Its four words that come up as a phrase 636,000 times on Google, two-thirds of which don't have Buffy anywhere on the page. If corporations could sue creators into oblivion every time they built of someone else's work in the 1500's, we'd have no Shakespeare today. IP laws are intended to promote creativity, not create a windfall litigation industry.
In the context of a site selling items with other lines from the same work, it's pretty clear they'd be selling "I've got a theory" in a Buffy context.
Does this mean I shouldn't be painting the Kaylee parasols for profit? I paint a lot of these for CSTS events in AZ. Now I am a bit afraid I'll get a bill.
madmolly, it's probably a gray area and it wouldn't hurt to consult a lawyer especially if you are profitting from it (although profit has nothing to do with the actual violation, it just puts you on people's radar faster).

BTW: Cafe Press lays out the rules pretty clearly on this page what is and isn't allowed on their site. Shutting down any sales of BtVS merch seems to be a no brainer.
Indeed, Simon. And that question in the entry saying, "is it fair?" has nothing to do with it. This isn't some mealy-brained grey-area European copyright thing, laws are very specific using even likenesses.

Doesn't matter if it was created by the individual and not the rights holder -- they still don't own the likenesses. Same thing would happen if I started selling images drawn that look like Mickey Mouse (only I'd be buried alive by Disney).

It's not a question of "fair". And last I hcecked ,even places like Cafe Press, dont' allow you to have accounts where you sell copyrighted material. That should be a Terms of Service breech.
It's obvious that the copyright terms are pretty straightforward here. But I have to wonder if as fellow fans we're doing the right thing by coming down so hard on the guy making this merchandise.

We can say we don't agree with him making a profit off of someone else's work, but do any of us report these people when they make fantastic shirts, shoes, hats, etc? We're willing to express approval when they make these products because we want to own them, we're willing to pay money for them, and we'll link to sites that offer them.

I'm not saying making a profit off of someone else's work is legally correct. But is it morally correct to slap down a fellow fan? When we never had a legitimate qualm before? It's all well and good to be smart fans, but shouldn't we also be supportive ones too?
Yes, they are doing the right thing. Let's look at it going the other way -- let's say they let that person continue to do it. Okay, so what -- there's probably another dozen or more people on Cafe Press doing the exact same thing, from Buffy to Angel to Firefly. What about them? Why can't they get a reprieve, too? What made the first guy (or gal) so special? 'cause that's what al the others will be wondering, then they'll look into a potential lawsuit. The last thing we want is the courts having new law precident wherein people can make a profit off somebody's else's property rights just because they made the merchandise or images themsleves. And it only tumbles downhill from thereonin.

It's morally correct to slap down the fan. They didn't need to give forewarning -- they user was already breaking TOS for Cafe Press and knew what they were doing. Now, what would be morally right to do, is not take the RIAA approach and bury them alive financially. Just a small fine, promise not to do it again, and let the person live to see anotehr day.
The holders of all those trademarks are perfectly within their rights. I'm not talking about Cafepress or Fox, I'm talking about us.
I only purchase legally licensed products (as far as I know) on principle. I refuse to buy products on Cafe Press or etsy or any of those fan merchandise shops no matter how much I might admire the work. Legally licensed product is plentiful and easily accessed.
Welcomne to the Moon, MoonRise.
I attend a lot of conventions and I have bought a lot of illegal/bootleg material at them. I got a bootleg DVD of Max Headroom years before it was for sale legally, and then I bought the legal DVD. The fact is that the vendors at these events avoid selling online because they hope to escape the notice of Fox Executives (or any other Studio/network/corporation). Actually it surprises me that at SDCC (for instance) there aren't lawyers walking around checking out the t-shirts, toys, weapons, and other unlicensed stuff which is clearly based on shows.

madmolly, a CSTS venue is probably one of the safest since it is a closed event: everyone there bought a ticket, and the money is for charity, so it is extremely unlikely that paper parasols represent a particular risk.
I have to side with Fox here. It is their IP. They make shows because they think they can make money off them, and merchandising very much comes into that. (Fox broadcast and Fox studios have different agendas but they take everything into account)
Without that profit from merchandising, or with less profit, there's a chance they would never have made the show in the first place. Or slashed the budget.
And we would have lost out.

That is what copyright is about. It gives the people who created (funded) a work exclusive rights to profit from it. Otherwise they wouldn't bother creating (funding) anything, and we'd have no TV, movies, music etc. We'd have nothing but fan fiction effectively.

Universal were dicks because they asked fans to do all sorts of stuff to promote Serenity, like posters, tshirts etc, and then the moment the movie was over went after those same people with C+D's.
Just to add, and this is not aimed at this person who I know nothing about, but certain fans can have very warped ideas when it comes to IP.

I remember years ago a Buffy site had lots of images, screencaps from episodes, and at the bottom of the page they had a big "These are my images! I captured them myself. Do NOT use them on your website without my permission!"

So they see no problem with them taking IP from Fox, but once those images are theirs then they can demand that no one dares take them from them! It always amazed me how anyone could be so unaware and entitled. The people who spent a couple of million dollars a week making a show have no rights, but the guy who pressed Snapshot on his recording can lay down the law...

[ edited by zz9 on 2012-07-22 02:02 ]
I agree that "I've got a theory" should be allowed if it's not in BtVS font. I didn't see the site in question when it was up so can't comment on the rest.
I have a tshirt (purchased online years ago) that is very similar to one that Jayne wore on Firefly. It's the orange one with the number in the middle. There wasn't an officially licensed one at the time so I bought that one. I think an officially licensed one came out later.

[ edited by Yefa on 2012-07-22 03:33 ]
Ok, so...then...I can make my Buffy calendar for myself, but I can't get it printed and made available for purchase by other fans. Ok, I guess I get that.

However, that's not (from what I understood from the original post) what's going on here. There were no images involved, it was merely a collection of words assembled into sentences that had been uttered by characters on a particular television show, words that have most likely been uttered by each and every one of us at some point in our lives. So the real question here is: Who owns the rights to those words? No one. You cannot, as I said above, copyright quotes or phrases.

The name Buffy existed long before Joss came up with his "perky cheerleader who hunts vampires by night" - I have a Spenser novel written by Robert Parker in 1972 with a character named Buffy. Joss didn't come up with that name. He added the middle name Anne and the last name Summers, but Anne's a pretty common middle name and Summers is not that uncommon a surname.

The problem is, as mentioned above, why does one fan get away with it while another is told to stop? The executives shouldn't pick and choose who they go after - either EVERYONE is breaking the law or NO ONE is. And the law should be more clearly defined so people are aware of what is and isn't acceptable. If I made up a bunch of Buffy calendars and gave them away as doorprizes at a convention, making absolutely no profit off them whatsoever, is that all right? If not, why not? The only gain I get is the happiness of my fellow fans at having a free, unique, limited edition calendar based on one of their favorite shows.
Again, I assume the issue is that if a site has a collection of (arguably, some say) innocuous-on-their-own sentences on t-shirts, but they all obviously come from Buffy, it's clear the site is selling Buffy t-shirts.
I'd noticed that most of the "Grrr Argh" Mutant Enemy shirts vanished from RedBubble recently, too. But that's the nature of unlicensed things - they come and go.
When I wrote "is it fair?" I meant if it was illegal or not. It seemed like some items could be, and some might not be.

After reading all of the replies, there is still uncertainty. You know, I've been loathing copyright law discussions about makinh them stricter, but really, anything that makes them clearer.

I wonder if it's illegal to buy fanart as well. I know actual copies of DVDs are illegal, but buying fanart?

I make canvases that I stick Buffy trading cards on, so they're definitly Buffy merchandise. But is that actually illegal? I mean, I'm not recreating the images, that would clearly break the law. I just use merchandise I already own. Or is it illegal simply because it's Buffy merchandise?
We can say we don't agree with him making a profit off of someone else's work, but do any of us report these people when they make fantastic shirts, shoes, hats, etc?

I refer you to the uproar when some fans try to sell their fanfic on the likes of Amazon etc. So yes, fans do report other fans.
Interestingly, ABC's "Lost" store these days directly includes links to fan-created products on Cafepress.
Some fans actually have licenses. Sometimes IP owners even grant licenses for free if they feel it is in their best interest. Permission isn't always prohibitively expensive. Disney licenses Donald Duck to the University of Oregon non-profit bookstore for free. It's not always about a buck. The rampant fan entitlement turns my stomach though.
My take is always 'make what you want, just make it free'. Fans should be free to show the love. Fans can sell things online all they like without a license, but I'm not sure they can complain if (when) the company shuts it down. If you're making serious money, you could also license it.
Anywhere we can actually see these designs in order to judge for ourselves?

Also, no answer to the teefury question..? (They seem to skirt around things a lot of the time...)
Teefury's designs are not licensed. Their angle is their designs are all parody of the original work.
I have a tshirt (purchased online years ago) that is very similar to one that Jayne wore on Firefly. It's the orange one with the number in the middle. There wasn't an officially licensed one at the time so I bought that one. I think an officially licensed one came out later.

Wasn't it because the designer got hired by QMX, who had a license? That's what more companies should do.
What about the ACEO cards on eBay? Just search for ACEO Buffy.
Our Zazzle store got taken down years ago after they (not us, really) made quite a bit of coin off our merch. We mostly used to buy the goods ourselves for giveaways and contests on Buffyfest until one random day they said "no more".

It definitely was grey area with only quotes like "Yummy Sushi PJ's" and Joss's Whedonworld Theme park, etc, no actual copyrighted images...but we weren't about to fight over it so we went back to screen printing ourselves. That's too tricky and inconvenient though, so we haven't done a contest with t-shirts or tote bags in a long time and prolly won't. They were cute though. Oh well!
I took the Comic Books Law class/panel at SDCC 2012 which was Thurs, Fri & Sat, 1.5 hours each day. Copyright and Work for Hire contracts were the main topics. I also went to a talk last March at the Academy of Motion Picture Arts and Sciences in Hollywood by Decherney on his book Hollywood's Copyright Laws (and then read the book). Short version, the laws can be enforced only by court cases and rather than allow laws to be clarified, the studios and guilds make agreements between themselves on how things are to be handled, to stay out of court. FOX was mentioned as the worst in coming down on fans, including those times when the fans are in the right. Unless you have hundreds of thousands to pay for attorneys, you can be right but still lose. Parody is considered Fair Use, while Satire is not.

Decherney made a great comment (expanded in his book), "Today's pirates are tomorrow's studio heads." All the old studios started out by flat out plagiarizing other studios, books, plays, etc.
And when I asked him about the Internet, mentioning Joss and Felicia, he smiled and responded "The Guild? I'm a Guildie." And that this is the next wave.

[ edited by Marsia on 2012-07-31 19:43 ]

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