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