From: Sean Andrews <[log in to unmask]>
Date: Mon, 27 Aug 2012 22:09:56 -0500

On Mon, Aug 27, 2012 at 4:53 PM, LIBLICENSE <[log in to unmask]> wrote:

> From: Jim O'Donnell <[log in to unmask]>
> Date: Mon, 27 Aug 2012 15:49:36 -0400
>
> Seems to me that's a specimen of a rightsholder who doesn't know when it's in its own interest to acknowledge fair use and let a small dollar revenue stream dry up.  Wouldn't it be a nicer world if universities and publishers and Disneys made a *point* of their own admiration for and respect for fair use as a principle?  If they convinced the general public that they get it about where a reasonable boundary lies between what we can do for free and when we should start paying licensing fees?

SA: Normally I'd agree with you, but trademark is a funny right. In
most cases, the rightsholder MUST sue in order to prove it is
protecting its right when it comes time to renew. You have to prove
you are protecting it because, in the end, the goal of trademark is to
not only ensure that rightholders are paid for goods which receive
additional value from their mark, but also to hold the rightsholder
responsible for things produced in its name. And I'm not sure if this
particular use necessarily qualifies as "fair use" in terms of a
trademark, but certainly it is pretty common practice around cultural
institutions like sport. I think Disney and others are in a different
ballpark since they are clearly less forgiving than they could be -
particularly when most of its back catalog is blatant plagiarism of
our culture.

> I cannot think offhand and would welcome examples of rightsholders who have done a good job of that kind of marketing.  I'll pay you a rights fee a *lot* more happily if I feel in my gut that they're more or less on the same page with me about where that boundary lies.

SA:  Most trademark holders are pretty ruthless. Copyright is
certainly more fluid and your sentiment seems widely held - though I
can't think of anyone who isn't a stickler on some level. Many bands
allow bootleg tapes - cf. the Grateful Dead collection in the Internet
Archive

http://archive.org/details/GratefulDead

and many a video remake on Youtube seems to suggest that it is a
pretty accepted practice by most rightsholders (though there are major
exceptions.)

I think the best example of what you are talking about is Lego. I
can't find the history, but my sense is that fans of movies began
using legos to create stop animation movies because they were an easy
medium to manipulate.  These were explicitly called Lego Star Wars or
Lego Superman or whatever film it was being remade with Legos (the
first one I saw was Star Wars, not sure when it really began.)  Here
is a sample of some more recent ones.

http://mashable.com/2010/04/24/best-lego-movies-youtube/

And here is the Internet Archive page cataloging all the works of
"Brickfilms" http://archive.org/details/brick_films

So far as I know, they never sued people for using this trademark, and
since then have gone on to create not only playsets but videogames and
more professionally produced films, or, at the very least, had them
licensed. In other words, by allowing this fan activity, they actually
opened up an entirely new market for themselves. Then again, I've not
seen a report about how this activity began: maybe it was more
ordinarily litigious.

Not sure if that's what you had in mind but...

--
Sean Johnson Andrews
[log in to unmask]
Assistant Professor of Cultural Studies
Columbia College, Chicago
2011-2013 ACLS Public Fellow
Program Officer
The National Institute for Technology in Liberal Education