Etsy: The Fuzzy Line of Creativity and Trademark/Copyright Infringement

Two of the biggest online entities for fan creativity are CafePress and Etsy. Often for fan artists there is a tricky balance between creating an item that is inspired by a book or the movie vs. something that takes the rights of others.  It gets even trickier when you have a book in the mix because now you have a publishing company’s rights to deal with as well.

CafePress entered into an agreement with Summit to allow fans to produce fan items from the Twilight Saga. There are tens of thousands of items from water bottles to tee shirts. There are some limits, like no images from the movie, and no fangs, but you can quote the movie, and use character names.

On the other hand, Etsy has no such agreement, and this leads to confusion over what is allowable. CNET covers some of the controversy:

One of the biggest entertainment franchises in the world, for example, is almost completely absent from Etsy: the Twilight teen-vampire book and movie series. There are items that describe themselves as “Twilight inspired,” but posts in Web forums by Etsy sellers who have had Twilight-related items removed from the e-commerce site indicate that Summit Entertainment, the movie studio that owns the trademark to the Twilight franchise, has been policing Etsy for more obvious infringements.

For legal reasons, Etsy’s Feingold declined to comment on these reports or on which specific brands’ trademark holders have called up the company with takedown notices, and Summit representatives did not respond to a request for comment. But considering Summit’s history of filing suit against unofficial Twilight media, it’s not surprising.

One of the reasons why this is so complicated is because trademark holders are required to enforce their property or risk losing the trademark altogether.

“They are required to protect their trademarks, if they are to continue to have them, so that it doesn’t fall into the public domain,” explained David Foox, a onetime patent litigator who is now an artist. Foox said he’s experienced these complications from both sides. “If you have a trademark, and you registered it, it means you have carved out a part of this idea that has been developed into a brand.”

Foox said that as an artist, he sees fan creations, including those where the fans aim to profit, as a measure of success, but that as an attorney, he recognizes the legal requirement to protect trademarks.”

See more on CNET.

So what exactly can you or can’t you do? Some things are obvious. You can’t take things like the Little Brown cover art, the movie stylized writing, movie stills, photos taken by professional photographers and use them without previous permission and in all likelihood payment for using them. Those are all unquestionably trademarked items. They are infact a violation of the Etsy Terms of Service. You just can’t take those and not expect to be slapped with a takedown when the intellectual property owner finds out.

On the other hand creating a fingerless gloves similar to the ones Alice wore in New Moon and calling them “Twilight Inspired” (vs actually saying “these are Alice’s gloves”) is probably fine.  Creating a bookmark that says, “A Perfect Rainy Day in Forks” or “Volterra, Where Tourists Come In, But They Don’t Come Out.” are both probably sufficiently vague.

So what about making a pendant that quotes the spider monkey line and has Team Edward on it. What about making locket and inscribing it with “Renesmee”? …Welcome to the gray area, and THAT’s what is causing a lot of the trouble!

What also leads to trouble is that when a complaint is lodged about one item, at times an entire shop will be suspended rather than just the one item in question which results in a loss of revenue for the shop owner until the matter is cleared up. Cafepress, for example, doesn’t remove entire shops, just the item(s) in question.

Twilight isn’t the first franchise to do this. Warner Brothers, who control the Harry Potter franchise, took down all Harry Potter CafePress shops circa 2003. They sued a women having Harry Potter dinners at her restaurant. They also vigorously enforced their copyright on fansites (Ask the guys on Mugglenet what they have gone through over the years  to make various tee shirts).

Additionally, if you really want a legion of lawyers to descend try taking anything that has to do with Disney. Disney is legendary with their vigorous defense of their intellectual property. I’m sure this family business didn’t bank on the 1 million dollar lawsuit over Winnie the Pooh!

So as of now, it looks like CafePress is the safest place for Twilight fan creations. Etsy, is going to be a proverbial crapshoot.

Copyright and Trademark Being Enforced

We’ve seen a number of commercial enterprises from tee shirt manufacturers to acting websites using things like the Cullen Crest, the Little Brown book cover images, or official PR photos of the actors to then represent or become a part of the product they sell. Typically, when the owner of the copyright/trademark (in this case Summit or Little Brown) discovers the unuathorized use of their intellectual property they issue a cease and desist (C&D) and the site/person generally speaking complies, everyone calls it a day and to quote Edward, “no blood, no foul.” Generally the party being handed the C & D has an inkling that what they were doing was either a gray area or actually over the line. They were just hoping not to get caught. So when the C & D lands in their lap they comply.

Summit has allowed individual creativity via CafePress, but there have been some stipulations. Certain products are off limits like calendars and journals. Certain images are off limits like photo stills from the movie, the Cullen Crest, book covers, etc. It’s an interesting approach, because many other movie studios are not that generous.  The studio that holds the franchise of a certain boy wizard have been notoriously vigorous in defending their intellectual property.

Here’s an interesting side note. In summer 2008 (prior to the Summit arrangement) the Lexicon had to do battle with CafePress. CafePress claimed our signature image of Bella and Edward were infringing on Stephenie Meyer’s rights. They refused to let us put that image on any products until we could prove to them that we had obtianed permission back in 2006 to do so. It was an interesting 2 weeks to say the least.

Well now it seems that Zazzle has gotten itself into trouble. According to Courthouse News, “Summit says it has pending copyrights on images such as the “Twilight” logo, the Cullen family crest and the phrase “Team Edward.” Zazzle has been selling products using those and other images since June 2008, the lawsuit states… allegedly ignored two cease-and-desist letters — one in November 2008 and another in August 2009.”

So what does this mean for you, the fan? Here’s our sideline, armchair view. This isn’t formal legal advice, just opinion based on observation.  If you make something on CafePress that complies with the rules, you should be OK. If you make yourself, for personal use,  a Team Edward tee shirt at home with an iron-on of Rob’s face surrounded by apples, parrot tulips, ribbons, and chess pieces for you to wear to a convention no one is looking to bust you. However, if you try to mass produce that and sell it on Ebay or Zazzle, expect the C & D.

TY to Amanda Bell the Twilight Examiner for pointing out the Zazzle story.

Stephenie Meyer’s Claim Supported: AKA Copyright 101

First let us start out by saying that we are completely biased here. We have been online as a Stephenie Meyer fansite since March 2006. And because of our relationship built over three years with Stephenie Meyer, we have no reason to doubt her word. So when the story first broke today on TMZ, we decided to do several things:

1. We looked at the version of the book in question that is available online
2. We asked Little Brown the publishing company for an official response
3. We started to research Ms. Scott herself

So we wrote up our preliminary findings here. Now what we found particularly interesting is that the attorney involved then decided to give a follow up to MTV. That’s right, MTV.  It’s a unique tactic first TMZ now MTV. Could it be that he has something for initials, or is it possibly that those sites generally have a target audience that mirrors the demographic Ms. Scott’s novel and career are directed towards? Oh heck, maybe it’s just sheer coincidence.
As many of you know, much of Breaking Dawn came from Stephenie’s first sequel she wrote to Twilight called Forever Dawn. In fact, Alphie got to read this book back in February of 2006 and stands by what Stephenie says on her website.

The basic story [between Forever Dawn and Breaking Dawn] is the same. Bella and Edward get married and go to Isle Esme for their honeymoon. Bella gets pregnant with Renesmee. The birth just about kills Bella, but Edward makes her a vampire in time. Jacob imprints on Renesmee. Alice has a vision of the Volturi coming to destroy the Cullens with the “immortal child” as their excuse. Alice bails. Bella’s shielding abilities turn the tide in the Cullen’s favor, along with Alice bringing home another half-vampire to prove that Nessie isn’t a danger.”

We decided to do some more research. We wanted to see for ourselves when Ms. Scott actually copyrighted her book.  Well we got a whole lot more than we bargained for. We not only looked up Ms. Scott, but Stephenie Meyer as well. We were after the date that Twilight was copyrighted. Little did we know that not only was Twilight copyrighted, but so is Forever Dawn. This was news to us.

The following information is readily viewable to anyone doing a simple site search at the copyright office. If anyone had thought to try this a year ago they would have had a hell of a spoiler in the name of the Application Title. additionally Stephenie has stated in various interviews and as  reflected in her “craptstic covers” that she originally toyed around with publishing under a pen name that included her maiden name of Morgan. You can see that name reflected in the registration as well.

Link here

Forever dawn.

Type of Work: Text
Registration Number / Date: TXu001163060 / 2004-01-05
Application Title: Renesmee.
Title: Forever dawn.
Description: 241 p.
Copyright Claimant: Stephenie Morgan Meyer (Morgan Meyer)
Date of Creation: 2003
Rights and Permissions: Rights & permissions info. on original appl. in C.O.
Names: Meyer, Stephenie Morgan
Meyer, Morgan

Now when one looks up Ms. Scott’s work what is discovered is that nothing was legally filed until AFTER, Breaking Dawn was published. Now the work itself (though not filed for copyright) was online starting in 2006 which is a full two years after Stephenie Meyer filed her Forever Dawn manuscript:

Type of Work: Text
Registration Number / Date: TX0006874176 / 2008-09-19
Application Title: The Nocturne.
Title: The Nocturne.
Description: Electronic file (eService)
Copyright Claimant: Jordan Scott.
Date of Creation: 2003
Date of Publication: 2006-07-05
Nation of First Publication: United States
Authorship on Application: Jordan S Scott, 1988- ; Domicile: United States; Citizenship: United States. Authorship: Entire text, editing, orginal work.
ISBN: 100977799697
Names: Scott, Jordan S, 1988-
Scott, Jordan

So all in all, given the above easily accessible information, we are satisfied with Stephenie Meyer’s version of events.

Breaking Dawn Plagerism Claim Disputed

Today various gossip sites published a story that an author named Jordan Scott is accusing Stephenie Meyer of plagiarizing Breaking Dawn. A quick Google search reveals Ms. Scott’s website and her modeling aspirations.

Ms Scott’s bio states:

As a musician and singer, I have worked in the entertainment industry since I can remember, but I became serious about my writing when I graduated high school at age 14.

When I was 15 I began writing The Nocturne Trilogy, after I took some time away from writing music and working in film and television. I wanted to write a character-driven story with characters who seem to “live and breathe” on the pages. I wrote The Nocturne with the intent of bringing readers into a completely new world of the fantasy and romance genres. And now I have completed it, after more than three years of intense research, character development, writing, rewriting, editing, and writing a little more! I hope you guys enjoy it.

I commenced studies in a Harvard University Psychology program when I was 17, after which I wanted to major in Film and Theater, and transferred to UCLA. So these days I divide my time between music, college, and writing.

I have an award winning script, and three other scripts in various stages.  Wow

I love school, writing, music, and of course Boys.

In response, Stephenie Meyer’s representatives have released the following, unedited statement:

“The claim that Breaking Dawn by Stephenie Meyer somehow infringes on an alleged book by someone named Jordan Scott is completely without merit.  Neither Stephenie Meyer nor her representatives had any knowledge of this writer or her supposed book prior to this claim.  Ms. Scott’s attorney has yet to furnish us with a copy of the book to support this claim as requested.  The world of The Twilight Saga and the stories within it are entirely the creation of Ms. Meyer.  Her books have been a phenomenal sensation, and perhaps it shouldn’t be surprising to hear that other people may seek to ride the coattails of such success. This claim is frivolous and any lawsuit will be defended vigorously.”

Loose fantasy ideas are not copyrightable, otherwise all vampire fiction would have stopped at Bram Stoker. Neither are loose romance plots copyrightable, or Harlequin would not be a leader in romance.  Part of the book in question is viewable on Ms Scott’s website as a Google document. Upon examination, in our clearly biased and in our non legal opinion, the type of word-for-word lifting and exact modeling of character and circumstance that need to be present for a copyright case to have merit is simply not there.

Electronic Piracy Threatens Publishers and Authors

The New York Times examines various author and publisher sentiments on the double-edged sword of electronic books.  Now that they are in this format, it’s a never-ending battle to keep them off of file sharing sites.

“It’s exponentially up,” said David Young, chief executive of Hachette Book Group, whose Little, Brown division publishes the “Twilight” series by Stephenie Meyer, a favorite among digital pirates. “Our legal department is spending an ever-increasing time policing sites where copyrighted material is being presented.”

Everyone from Stephen King, to Ursula K. Le Guin, to Harlan Ellison chimes in about a problem that Russell Davis describes as, “…a game of Whac-a-Mole. You knock one down and five more spring up.”

Despite the piracy, the Twilight Saga is still bringing in big bucks for parent company Hachette.

Get the full story on the New York Times.

Whose Characters Are They Anyway?

I know the title of this entry might seem awfully silly and obvious, but the characters in the Twilight Saga belong to Stephenie Meyer and to some extent, in regards to the movies, to Summit Entertainment.

So why are we bringing this up? Every now and then we get a teenager emails us wanting to know if we’d feature their Stephenie Meyer product that they are producing and they want to be paid for. They figure if Hot Topic has stuff why can’t they sell theirs. Once in a blue moon we get a teen who wants to publish their Twilight story. The short answer here is that you can’t do those things for profit because the characters belong to Stephenie Meyer and unless you have some type of specific licensing agreement or contract with her and Little Brown ( like Hot Topic, Summit, Borders, NCEA, Cafepress, etc. ) you can’t do this. She holds the intellectual property rights over her characters (copyright, trademark depending on what we are talking about) until such time as they go into the public domain. We then let the teen in a nice way know that despite their gusto, what they want to do is illegal.

So when do things hit public domain? According to US law (and other nations have highly similar laws) works created after January 1, 1978, are automatically protected from the moment of their creation and are given a term lasting for the author’s life, plus an additional 70 years after the author’s death. So folks, the earliest that anyone can profit from Stephenie Meyer’s work without her say so (assuming she met a sudden untimely end today) would be 2079. Suffice it to say, many of us will be long dead.

Let’s put this into simple terms: The loose ideas of vampires feasting on animal blood instead of human, vampires needing to stay out of the sun, the Quileute Tribe in La Push, shape shifting werewolves, etc. are not copyrightable until you lump enough together and make them uniquely yours. In other words a werewolf of the Quileute tribe whose name is Jacob Black and whose mortal enemy is a vampire named Edward Cullen who drinks animal blood, sparkles in the sun, and resides in Forks…(deep breath)…IS COPYRIGHT STEPHENIE MEYER. Think of it like TV series that try to imitate each other where they have similar types, but in the end, each series’ characters uniquely belong to that series and their creators.

The only thing you can legally do with these characters is something highly transformational like parody, such as what Saturday Night Live does in its spoofs, or a critique piece, and even then, you have to be careful on how much source material you quote. Writing a summary of facts (see the story of the Harry Potter Lexicon debacle) or writing a continuation is derivative and therefore illegal without permission.

As far as fanfiction goes. It absolutely infringes on copyright, but most authors are willing to look the other way on it as long as you are not trying to directly profit from it yourself. In other words you can’t self-publish your fanfic and sell it on Amazon or Ebay, at least not legally.  Other authors, do not just look the other way, two such examples of vampire writers are Anne Rice and J.R. Ward.

Is fanfic helpful? Maybe, there are current authors who used to write fanfic, Meg Cabot and Cassandra Clare are two examples. However, merits of their work aside, these authors never tried to publish things that weren’t theirs for profit. They knew better. If publishing fanfic were legal you can bet that Cassandra Clare would have published both her Lord of the Rings and Harry Potter fanfiction for huge profit, given the number of her followers, years ago.

Why are we bringing all this up now? Well this past month a 36-year-old fan fic writer who has her own publishing company (AV Paranormal) and given that fact, should know better, tried to publish her post-Breaking Dawn fanfic entitled “Russet Noon” on Ebay. She sent multiple press releases out on the matter; each one was more delusional than the next all containing gross misrepresentations of copyright law.  Frankly we keep baffling at these conservations that she supposedly had with her publisher that she keeps mentioning in her press releases since she is her publisher. Does she do it via an out of body experience?

At one point she linked her site to the Lexicon as if to suggest that we approved of this fiasco. (You can see how we dealt with her in the comments section here.). You can see how other industry professionals categorized her folly:

Lee Goldberg, Hollywood screen writer and blogger

How Publishing Really Works, industry blog and resource site

Well, we thought, that the author of this had finally seen the light when she self-deleted her website, and removed her novel from Ebay. Honestly we weren’t going to give her any press other than to point out her lunacy to Jaden for his commentary until today when she issued yet another press release.

It seems that she still hasn’t figured out what she did was illegal and has a great woe is me interview going on over here. Before someone else gets suckered by this adult, college-educated woman’s, “The big bad powers that be are ganging up on poor little me” and “now I’ll just have to publish it online for free” routine (AKA: what every other fanfic writer gets to do minus the whine and delusion), we decided to speak up.

So, in the interest of having the other fanfic writers out there (currently 74,107 on alone), if you have a recommendation for a fanfic that isn’t bombarding the Twilight sites with press releases, put it in the comments.