This is the text of a talk I gave as part of the Tolkien Track of Dragon*Con on September 1, 2007.
This work is licensed under a Creative Commons Attribution-Noncommercial-Share Alike 3.0 License.
Know Your Rights: Copyright Law for the Creator of Fan Works
- Overview of copyright law
- Possible defenses to infringement actions
- Ways to make it less likely that you'll get sued
- What to do if you or hosting service get an angry letter or takedown notice
Hello! Welcome to "Know Your Rights: Copyright Law for the Creator of Fan Works." I'd like to start out by assuring everyone that I don't work for New Line or the Tolkien Estate or anyone else with an interest in Tolkien's works, so I'm not here to tell anyone to stop doing anything. I'm here as a fan, both of Tolkien's works and of fan-fiction. I'd like to see them all flourish.
My name is Theodora Michaels, and I've been working as an attorney in the field of copyright law for almost ten years. For about twenty years I've been working in the music industry, I'm also a musician, and I've done some work in film, doing clearances. So I've always been interested in the creative side of things and the legal side of things. Though legal work can also be creative, as we'll see.
There will be time for some questions at the end, so I ask that you please hold your questions, and I'll be happy to answer them at the end of the talk.
I'll start by giving a general overview of copyright law. I'll also discuss the Tolkien Estate's position regarding fan fiction, which I know because I wrote to them and asked. Next I'll discuss common defenses to infringement actions, such as fair use, and how these might apply to your own fan works. Then I'll list some practical ways that might make it less likely that you'll get sued. And finally I'll be discussing what to do if you or your hosting company gets an angry letter or email threatening to sue you, or demanding that you take down something you've posted. And I'll be naming some specific organizations that are interested in these issues and may be able to help if you do get such a letter.
So, we'll start with a general overview of copyright law. I should start by noting that copyright law is different in every country, and I'll be discussing U.S. law. So if you were hoping to find out what happens if you have a U.K. citizen who posts something on a Canadian website hosted in Korea, and gets sued by someone in Germany, I won't be discussing that. Though the quick answer is, no one knows.
So what will I be covering? As a fan myself, in my travels across the internet I'm amused at how many websites I see that start out with a short paragraph that looks like it's trying to be some kind of disclaimer, but really has no effect other than to indicate that the writer knows nothing about copyright law. Disclaimers sometimes look like they're being used as magical incantations copied from website to website, like spells for protection against the most terrifying foe of the modern world: lawsuits.
I'll read a few of these as examples: these are excerpts from a random assortment of fan-fiction websites:
"There is no profit made on any of these stories. . . . They are simply parody and no harm is intended."1
"JRR Tolkien wrote the Lord of the Rings and invented its characters and places. I merely abuse them, daydream about them, and write stories about them. . . ."2
"Tolkein’s [sic] estate and New Line own everything! I am just a humble fic writer who writes because her Muse will not leave her alone."3
" . . . All lies, own nothing, make no money, God bless Tolkien."4
"We do not own this; it owns us."5
"All I've got is a computer and a cat...and you're not getting the cat."6
And one in verse:
"Oh Tolkien, it is all thine
From Lorien's woods
to Moria's mine
You own the Elves,
the Dwarves, the sea
And, I'm afraid, own even me.
Oh copyright I honor thee,
So there's no point in sueing [sic] me
Amusement's all I'm aiming for
Respectfully, yours, Erestor"7
So what's wrong with these? By the end of my talk, I'm hoping you'll be able to answer that question, and more importantly, figure out whether your posts need a disclaimer, and if so, what you should write.
Who says we should even have a copyright law? The same document that brought all U.S. laws into existence, the Constitution. Specifically Article I, Section 8. Now, when I think of "Section 8" I always think of Klinger on M*A*S*H, trying to be found mentally unfit. Of course, Klinger wasn't really crazy. The current copyright law is.
So we're starting with the Constitution. Article one, section eight, says "The Congress shall have Power" . . . and here it names a whole bunch of different things that Congress is empowered to do, one of them being . . . "To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries."
When it's talking about inventors and discoveries, that's where we get patent law; it's from the same clause. This language is important, I'll read it again:
"The Congress shall have Power . . . To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries." So it doesn't just authorize the creation of copyright law, it tells us what the Founding Fathers saw as the purpose of copyright law. It doesn't say "So that authors and their heirs can make a lot of money." It doesn't say "to put bootleggers in jail" or "to make things so confusing that people have to hire lawyers." It says "To promote the progress of science and useful arts." That's the purpose of the copyright law.
If copyright law never developed beyond that, we'd be stuck debating whether the Founding Fathers would have considered Lord of the Rings fanfiction a "useful art." Luckily we don't have to have that discussion. Authorized by the Constitution, Congress has passed much more detailed copyright laws, and the law's protection extends to "original works of authorship fixed in any tangible medium of expression."8 That's the exact language.
This covers a huge variety of different kinds of works, including many the Founding Fathers never could have envisioned. This means that, for example, if someone wants to create fan works based on the Lord of the Rings movies, they're potentially infringing many different kinds of copyright-protected works, including not only the original books and the films, but also all the different creative works incorporated in the films, such as music, audio recordings, paintings, sculpture, architecture, fabric patterns, and well-defined fictional characters.
I say this not to scare you, but because if you are worried about getting sued, it's important to think about each of the elements you're using. That way you can ask yourself, is this particular work protected? If so, who owns it, and how likely are they to sue me?
I'll be discussing a few specific categories of works, though I won't have time for everything. But before I get into details, let's discuss fan-fiction in general. Is it legal? Go not to copyright lawyers for counsel, for they will say both no and yes. Well, we have to start somewhere -- what does the Tolkien Estate say? They have a website, at TolkienEstate.com, so I looked there first. There's an FAQ section -- the letters FAQ are written in Tengwar until you hover over it -- and one of the FAQ's is
"Can I / someone else write / complete / develop my / their own version of one of these unfinished tales ? (or any others)"
That's all slashes in between the words; they like slash, at least as punctuation. It goes on,
"The simple answer is NO. [(No is in capital letters.)] You are of course free to do whatever you like for your own private enjoyment, but there is no question of any commercial exploitation of this form of 'fan-fiction'. [(Fan fiction is in quotes.)] Also, in these days of the Internet, and privately produced collectors’ items for sale on eBay, we must make it as clear as possible that the Tolkien Estate never has, and never will authorize the commercialisation or distribution of any works of this type. The Estate exists to defend the integrity of J.R.R. Tolkien’s writings. . . ."
I read that over a few times, and a couple of things weren't quite clear to me. Despite the "no" in capital letters. I like to go to the source, so I emailed them, and got a nice email back from their attorney Cathleen Blackburn.
I'd sent her three main questions. The first is maybe more theoretical than practical. Their answer starts out "You are of course free to do whatever you like for your own private enjoyment." I was a bit surprised by that "of course." There's nothing in the copyright law that says infringement is OK if no one knows about it. So, if you wrote a screenplay based on The Hobbit -- because who knows if New Line will ever get to it -- but you just stuck it in a drawer and didn't show anybody, that's technically still copyright infringement. So is the Tolkien estate saying they don't mind private uses, or they mind but know they can't do anything about it? Ms. Blackburn replied, "As you correctly say, there is no provision of copyright law which makes permissible the copying of a copyright work for one's own private purposes. As a matter of practicality, however, if a person creates such a work for his/her own private enjoyment, and does not disseminate it in any way, it is unlikely to come to the Estate's attention." So she's not saying they approve of it; the "of course" is apparently just because they won't know. So if you create a fan work and don't show it to anybody, don't assume the Tolkien estate is OK with that.
My second question had to do with what they consider commercial use. It seems to me that most fan-fiction posted on the internet, although technically available worldwide, is as a practical matter viewed by a group of friends (or people whose websites are linked) who are writing mostly for each other. I'm not aware of any writers who make a profit at it, although some may have ads on their websites in an attempt to cover hosting costs. Does that count as "commercial exploitation," "commercialization" or "distribution" which are the words used in their FAQ's?
After discussing private use, Ms. Blackburn's email continued, "The situation is quite different where there is any form of dissemination of a copyright-infringing work, and 'dissemination' for these purposes would certainly include inclusion on a website or distribution via the internet, even if only accessible to a limited number of people. Any such dissemination is liable to legal action and the Tolkien Estate does not hesitate to take such action in appropriate cases. It follows from this that any writer of Tolkien-based fan fiction who distributes his/her work, whether via the internet or traditional methods, will make him or herself liable to legal action."
That's pretty scary language. Should you be scared? I think fear should be reserved for things like orcs, or their modern day equivalent, but you should know what's at stake. Copyright infringers do occasionally get sued, and the penalties can be incredibly high.
A copyright infringer can be required to pay damages of $750 to $30,000 per copy.9 That's regardless of whether the infringer made any money. If the infringement was found to be wilful, that can increase to $150,000 per copy.10 The losing party might even be required to pay the winner's costs and attorneys fees.11
With the stakes so high, one might wonder why anyone does anything that might put them at risk for a lawsuit. Yet a Google search for Lord of the Rings fanfiction or Tolkien fanfic or any variation on those terms yields hundreds of thousand of hits. Clearly, this frightening language from the Tolkien Estate and the copyright law is not having its desired effect. I can't know the reason that each of these writers chooses to take the risk. Maybe they're not familiar with the law's damage provisions. Maybe some believe their work is protected by fair use, even though a court might find otherwise. Or maybe, as some of the disclaimers indicated, the urge to immerse oneself in Tolkien's creations and creatively expand upon them is so great that it overcomes even the prospect of financial ruin. That one author's work could have inspired the creation of hundreds of thousands of new works even in the face of such severe penalties sounds to me like the promotion of progress described in the Constitution. I think the Founding Fathers would be proud.
Or perhaps fanfiction writers are not scared because they know there is safety in numbers. It's one thing for a copyright owner to say they don't like fan works; it's quite another to make a federal case out of it. Bringing a copyright infringement action is a time consuming and expensive process. Even the most vigilant and litigious copyright owner is unlikely to target more than a tiny fraction of infringers -- maybe one or two lawsuits, a few hundred angry letters or takedown notices to ISP's.
With the chances of someone complaining about your fan works so low, why are we even here? Well, contrary to what some copyright owners may think, many creators of fan works do want to obey the law, so far as their muse lets them, or at least know when they've crossed the line into illegality. Writing is less fun if you feel vaguely guilty about it. I dream of a world where the creators of fan works know enough about the copyright law to create either in the secure knowledge that what they're doing is fair use, or with the knowledge that they are deliberately breaking the law in an act of civil disobedience.
The difficulty is, even with an encyclopedic knowledge of copyright law, it's not always clear what's allowed and what isn't. Backtracking a bit, you may recall I'd sent the Tolkien estate three questions and I've only discussed two so far. The third pertained to Tolkien's constructed languages, such as Quenya. Now, the copyright law doesn't specifically address languages, probably for the simple reason that not many people create them. There haven't been any cases on this exact topic. And it wasn't clear to me whether it's legal to, for example, write a new poem in Quenya. Is it possible to own a copyright in a language?
Cathleen Blackburn replied to me as follows: "In relation to Quenya and other Elvish languages, the Tolkien Estate takes the position that these are copyright works and, accordingly, a licence is required for any uses of them which would otherwise amount to copyright infringement."
Again, that sounds clear-cut, and a bit scary. But is it so clear? I don't think so, for a few different reasons. I'm not the first to look at this issue. Back in 1999, some Tolkien scholars wanted to publish a journal entitled Tyalië Tyelelliéva, which was to include original poetry written using Tolkien's languages, but they didn't want to run afoul of copyright law. So they solicited a legal opinion from Robert P. Wade, former General Counsel, National Endowment for the Arts. This opinion is available online. He researched the law and concluded that this use would not violate any Tolkien copyrights, for a few different reasons. I won't have time to go into all of them, but here's one: The copyright law specifically says it does not protect any procedure, process, or system.12 A language is a system.13 In fact, there have been cases saying that computer languages are not copyrightable.14 Computer programs are copyrightable, but not the languages used to write them. Would a court find that a language intended for use by humans -- or elves -- falls into the same category? I can't say for sure, but I think there's a good chance of it.
I still didn't want to dismiss Ms. Blackburn's position too quickly, maybe she knows something I don't. I subscribe to an email list for copyright attorneys.15 I asked the list members what they thought about the copyrightability of constructed languages. This prompted some interesting discussions, but there was no clear consensus as to copyrightability. In other words, Ms. Blackburn's statement that Tolkien's languages are protected by copyright should be taken with a grain of singë.
Here's the last subtopic in my scary copyright law topic -- The Digital Millenium Copyright Act, DMCA for short. This became law in 1998, when it became clear that new laws were required to deal with internet issues. This law does a couple of important things. One is that it gives copyright owners clear guidelines for how to notify online service providers of alleged infringement.16 I'll be discussing that later on when I get to Cease and Desist letters. Secondly, it makes it illegal to circumvent digital rights management technologies,17 or as computer hacker Richard Stallman calls them, digital restrictions management technologies.18 This means that it's illegal to break copy protection, for example on a DVD, even to access content that you'd otherwise be permitted to copy. I bring this up mainly for those of you who do video mashups, but it also applies to any format where you're working with something copy-protected. Let's say you buy a DVD and some of what's on it is subject to copyright but some of it is public domain. Or the whole thing is under copyright but you want to use an excerpt in a way that's clearly fair use. The DMCA says that if the disc is copy protected, you can't break that copy protection even to extract an excerpt that is public domain or fair use. Understandably this law is criticized by many people, and I just wanted to make you aware of it.
Now, I think I've scared you enough. I'll move on to the section you've probably been waiting for, defenses to infringement actions: limitations on the copyright owners' exclusive rights.
"Ooh! Ooh!" I can almost hear everyone thinking. "Fair use! It must be fair use to use Tolkien's works in mine." Well, what is fair use? "It means I get to do whatever I think is fair?" Not quite. Let's go to the source again. I'm going to summarize this a bit. The copyright law says "the fair use of a copyrighted work . . . for purposes such as criticism, comment, news reporting, teaching . . ., scholarship, or research, is not an infringement of copyright."19 Good, we've got something pretty clear here. If you're, say, writing a scholarly paper about Tolkien's works, and you want to quote a short passage to illustrate a point, that's pretty clearly fair use. But that's not all fair use covers. It says "the fair use . . . for purposes such as . . ." So that implies other types of use might be fair too. How do we know what they are? Well, the law goes on to give us some guidance:
"In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include —
(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
(2) the nature of the copyrighted work;
(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
(4) the effect of the use upon the potential market for or value of the copyrighted work."20
Here's the problem: when it says "the factors to be considered," it means considered by a court. Fair use is a defense to an infringement lawsuit, and only a court can make a definitive determination as to whether a particular use is fair. Well, that's not very helpful at all if you're just trying to decide what you can put on your website. I could discuss each of these factors at length, but that still might not be especially helpful, since this is a determination that needs to be made on a case by case basis. You need to see how each factor plays out in the context of your particular use.
I will just point out one thing that's not in there - I'm about to debunk a common misconception. You'll want to kill me, but you won't. Why? [beat] Because it's a felony.21 You'll note it doesn't say that a use is fair just because the user isn't making money. Not that money has nothing to do with it -- the first factor asks whether the use is commercial or for non-profit educational purposes, and the fourth factor asks about the effect on the market for the copyrighted work. But the fact that you're not making money, in itself, doesn't get you off the hook for copyright infringement. It can have a practical effect on whether the copyright owner decides to sue you, but that's a tactical decision on their part. I'll be getting to those kinds of practical considerations later on.
Isn't there anything that's clearly fair use? How about parody? I like parodies. Have you seen that one where it was like The Breakfast Club, but with Lord of the Rings characters? I googled for it the other day but couldn't find it. Here's the interesting part: the word parody as used in the copyright law has a more narrow meaning than the word parody as commonly used in English. This is because of a specific Supreme Court case called Campbell v. Acuff-Rose Music, Inc.22, more commonly known as the "Oh, Pretty Woman" case. The rap group 2 Live Crew had written new lyrics to the song by Roy Orbison and William Dees called "Oh, Pretty Woman." [sing] "Pretty Woman, walking down the street" -- that one. The publisher of the song was not happy about the new lyrics and sued. The Supreme Court said that parody can be fair use -- that's good. But the court didn't say that every type of parody is automatically fair. The new version, "Pretty Woman" was potentially fair because it parodied the original work. But if you use one work to parody a different work -- say using Lord of the Rings to parody The Breakfast Club -- or to parody society in general, it's much less likely to be considered fair use. The court also pointed out that once you've used enough of the original work to make clear what you're parodying, there's no inherent right to use any more of it. So many of the works posted on the internet that call themselves parodies, or that the average reader would call parodies, aren't necessarily protected under the wording of this important Supreme Court case.
Well, if we can't always rely on fair use, is there another doctrine we can invoke? The Lord of the Rings incorporated material from Beowulf and other ancient tales in the public domain. Is there some way we can claim that Tolkien's works are in the public domain? After all, everyone knows he wanted to create a "mythology for England." There's even a book called Tolkien's Art: A Mythology for England. Myths are in the public domain. If I got sued for writing fan-fiction, could I say that by intending to write "a mythology for England," Tolkien wanted his works to be considered public domain? There's a concept called "abandonment of copyright" -- if someone clearly indicates their intent to abandon their copyright, that's a valid defense to an infringement lawsuit.
So let's look at this more closely. As I'd mentioned, I like to go to the source, so my first question was, where did Tolkien write that he wanted to create "a mythology for England"? I vaguely remembered it was in that letter he'd written to Milton Waldman, reproduced in the preface to the Silmarillion, but I read through, it's not there. So I surfed around on the net; apparently everyone else remembered that's where it's from too, but it's not. I couldn't find the source. Eventually I found a reference to a 1995 scholarly paper by Anders Stenström called "A Mythology? [(question mark)] for England? [(question mark)]." That sounded intriguing. The paper wasn't available online; I had to go to one of those library places. Not just any library, this was the big one in Manhattan with the lions in front. I'd been in there before but never in the research rooms upstairs; it's a beautiful place, all marble, with art nouveau statues that look like they should be in Rivendell. Anyway, this paper is part of a collection in a book entitled [deep breath] Proceedings of the J.R.R. Tolkien Centenary Conference, 1992: proceedings of the Conference held at Keble College, Oxford, England, 17th through 24th August 1992 to celebrate the centenary of the birth of Professor J.R.R. Tolkien, incorporating the 23rd Mythopoeic Conference (Mythcon 23) and Oxonmoot 1992, edited by Patricia Reynolds and Glen GoodKnight. For short I'll use the acronym Pot-JRRT-CCN-pot-ChaK-COESt-TAN-tct-cot-bop-JRRT-it-TMC-M-TaONeb-PRaGG. Or maybe not. Anyway, I went into this beautiful research library and you have to request the book you want by writing the title on this little paper request slip. Despite the impossibility of that I managed to get the book and I found the article.
The writer Anders Stenström -- I googled him, he's also been known to go by the name Beregond) -- found that Tolkien never wrote the phrase "a mythology for England." Instead, he found that apparently this phrase originated in the Tolkien biography by Humphrey Carpenter. Carpenter used that phrase and it wound up being included in the index, listed in such a way that it looked like something Tolkien wrote. Then Mr. Stenström -- Beregond -- looked through Tolkien's writings and found 54 instances where he used the word "myth" or "mythical" or "mythological" to refer to his own works, and tried to figure out what Tolkien meant. It turns out that as often as not, Tolkien was really just using the word to mean "a large set of related stories" or "stories with an aura of mythology." So although Tolkien did write, in a letter to a mister Thompson, that he wanted (quote) "to restore to the English an epic tradition and present them with a mythology of their own" (end-quote), there's no indication that Tolkien intended that to diminish his interest in the copyrights in what he'd written. So the doctrine of abandonment doesn't help us either.
So, where are we? Languages may or may not be protected, fair use isn't as broad as we might like it to be, a lot of parodies aren't really, and the Tolkien Estate doesn't want us writing fan-fiction. But thousands of people are writing fan fiction anyway. That being the case, how do you make it less likely that you'll get sued?
There are some cases where asking permission might be a good idea. For run-of-the-mill fanfiction this probably won't work; in fact if you ask permission, and the copyright owner says no but you go ahead anyway, now you've actually made things worse for yourself, because they know about you, and you've created a record that you know what you're doing may be infringement. But for example, if you have an idea for a commercial product, and it doesn't directly compete with anything currently on the market and you write a business-like letter to whoever owns the rights you'd like to use, it is possible you might be able to license the rights you need. Merchandising based on The Lord of The Rings far pre-dates the recent movie hoopla; there've been licensed Lord of the Rings products available for many decades. All of those licensed products started out with a polite letter asking permission.
Even if there's no money at stake, rights-holders do sometimes approve a use, if they have no reason to object to it and get a polite letter. I can give an example from the music publishing company I work for: occasionally we'll get a letter from someone asking for the right to print lyrics from a song we own in a limited quantity, for example on their wedding invitations. If the person went ahead and printed them without our permission, would we know? Probably not. But we appreciate that people respect our property enough to ask permission, it's not worth taking the time to write up a full license agreement, so in rare cases we may grant someone the right to use our lyrics for free for a specific limited use. And now the person doesn't have to worry about getting sued, because they know they have permission. Again, in some cases asking permission can hurt more than it helps, if the rights-holder says no and you go ahead anyway, but it is a possibility to keep in mind depending on what you want to do.
Here's a second way to limit the risk of getting sued: stay under the radar. For example, say you write fan-fiction and you'd like the entire world to read it, but as a practical matter you're pretty sure that the only people who will read your new story are ten people you met on LiveJournal. Rather than posting your story on the world wide web where everyone and their lawyer can get at it, just email it to your ten friends. Don't create any more copies than you need to.
Here's a third possible way to lessen the risk of getting sued - use a well-written disclaimer. This can address both legal and practical issues. First and foremost -- never say or imply that you know what you're doing is illegal. That can never help you, it can only hurt you. Also remember that a disclaimer doesn't affect the legality of what you're doing -- if a work is clearly infringing, you can't change that by sticking an extra paragraph in front of it. That said, if you feel the need to include a disclaimer, don't just copy something from somewhere, but think about what you're writing and how it might look to a busy lawyer who's debating sending you a cease and desist letter. If you feel you have a valid fair use claim, get specific: "This is a lawful parody pursuant to Campbell v. Acuff-Rose Music, Inc." That was the "Oh, Pretty Woman" case. Or, "This use of Quenya is lawful because constructed languages are systems which are not protected by copyright." Does saying that make it so? No, but it does indicate that you know something about copyright law and are willing to do research to protect your rights. Maybe that's enough to convince a busy copyright lawyer to go pick on someone else. You can also address practical issues in your disclaimer. Saying "I have no money" has no legal significance, but again, it might possibly convince a lawyer that their time is better spent going after someone else.
Here's a fourth possibility to make it less likely you'll get sued - but this is a long-term strategy. Work to get the copyright law changed. Become involved. Many recent changes in the copyright law came about because of lobbying by large companies and industry groups -- Disney, Microsoft, the RIAA, but private citizens are allowed to get involved too. I know because I recently did it myself -- the Copyright Office announced that they wanted information about a specific part of the law dealing with music licensing -- that's something I'm very interested in. I emailed the Copyright Office, asked if I could participate in the discussion, they said yes, and I went to Washington DC and participated in a meeting with the head of the U.S. Copyright Office, Marybeth Peters, and people from various music industry groups. Maybe you don't want to get that involved, but you can stay on top of proposed legislation, write to politicians, and donate to groups that are working for copyright reform. The U.S. Copyright Office website is copyright.gov; you can go there to read the latest news about what they're doing. The group Electronic Frontier Foundation, at EFF.org, to quote their website, "champion[s] the public interest in every critical battle affecting digital rights." Learn about Creative Commons, at CreativeCommons.org, which is working for greater clarity and accessibility in copyright licensing. Copyright law is a very interesting topic, which is why I've made it my career. I assume that many people in this room create other works besides fan fiction -- the copyright law doesn't only control how you get to use other people's works, but how they get to use yours. If you don't want other creators to have the same difficulty building on your works that you're having building on Tolkien's, now's the time to get involved.
What do you do if, despite all your best efforts, you get an angry letter about a fan work you've created? First, don't panic. A letter is not a lawsuit, and just because someone threatens to sue you doesn't mean they will. Bringing a copyright infringement lawsuit is very expensive, and a sensible copyright owner will usually try to find a way to resolve the matter without a lawsuit. So keep that in mind and don't panic.
Then read the letter carefully. Figure out who is writing to you and exactly what they're objecting to. These are both important.
First, figure out if the person writing to you is actually the copyright owner or their representative. It's not unheard of for people to write angry letters regarding copyrights they have nothing to do with. For example, I've been doing clearances for a documentary called Vampira: The Movie. Which played here last night at 1 AM, in case you're wondering why I'm a bit bleary-eyed. The director has received several emails from a guy questioning his right to use some footage that originally aired on KABC in the 1950's. The thing is, after some research, we determined that the guy writing these emails actually has nothing to do with KABC, and has no interest in the copyright in this footage. He is, in a word, a crackpot. So we asked him to stop bothering us, and we'll be ignoring any future emails from him. A legitimate letter will usually start out with something like, "I represent so-and-so, who owns the copyright in such and such." If it doesn't say that and it's not clear what the writer has to do with what you allegedly infringed, write back, politely, and ask for clarification. Keep in mind that if the copyright owner were to sue you, they would need to prove that they own the copyright. If they can't provide you with any information about their ownership, then you've got a lot less to be worried about.
Second, read carefully to see exactly what they're objecting to. Don't take down your whole site if there's only a specific part that they're complaining about.
Third, and this is the tricky part, try to figure out if their complaint is valid. You might want to consult an attorney about this, and that may be cheaper than you think. In New York City we have a group called Volunteer Lawyers for the Arts, and you can check if there's something similar in your neighborhood. I can also recommend a website called ChillingEffects.org -- they have a database of Cease and Desist notices with explanatory notes added by lawyers, and they have FAQ's about laws affecting online activity. There's also the Electronic Frontier Foundation I'd mentioned previously -- they'll get involved in cases they think are important.
If it's pretty clear that you are infringing the letter writer's copyright, well, you probably should remove that content and let them know you've done so. But if you believe the complaint is not valid, for instance you have a strong fair use claim, or your work falls into one of the grey areas we had discussed, then you might want to make a stand. Write back, politely, and explain your reasoning. This puts the ball back in their court.
They probably will not go right to suing you, but they might try to get your site taken down by using the DMCA Notice and Takedown provisions. You may recall I'd mentioned the Digital Millenium Copyright Act earlier. The DMCA did one thing that's very good -- it said that online service providers like ISP's and websites that let the general public post content are not responsible for infringing content that their users post, if they follow certain guidelines when they're notified of infringement.23 That's great because if these companies thought they'd be responsible for everything that gets posted, a lot of companies wouldn't want to take that risk, and the internet would be a much more restrictive place than it is. On the other hand, some say that these provisions make it too easy for content-owners to remove materials they don't like.
If a copyright owner objects to what you're doing, they might choose to contact you directly, but they also have the option of filing a DMCA takedown notice with whoever is hosting your content.24 For example, I recently emailed YouTube several DMCA takedown notices because they were hosting videos that infringed on songs owned by my employer. YouTube took the videos down, and I doubt the people who posted them will try to get them put back up, because those were clearly infringing. But, let's say I'd made a mistake, or the people who posted those videos felt they had a valid fair use claim. They would have the option to send counter-notices to YouTube to try to get the videos put back up.25 I don't have time to go into more detail about the DMCA notice and takedown provisions, but you can find more information at ChillingEffects.org and EFF.org.
I'm nearing the end of my talk, but don't worry if you missed something; I'll be posting the entire text, with footnotes and links, on my website at TheodoraMichaels.com. And the talk will be posted with a Creative Commons license which permits copying for non-profit use.
Yes, this will be posted on the internet. We've come a long way. The Anglo-Saxons, from whom Tolkien derived inspiration for the Rohirrim, usually wrote by carving runes into wooden sticks. Most of their writing has now been lost. Yet what remains can sometimes still be read by experts. Compare that to some of the works by those of us in this room, works only a few years old, some locked on floppy discs in obsolete formats. Think of how many older digital works will never be recovered. Thousands of films from the early 1900's have decayed beyond repair.26 Millions of digitally created works are accessible worldwide, but only for so long as readers have electricity, and computers, and the right software. Today's abundance of information and expression is awe-inspiring, but also tenuous. I don't need to name for you the various doomsday scenarios that could loosen our grip on this vast body of modern work; you can, for now, surf the internet and find all the worrisome predictions you might want. I don't claim to know which will come to pass, but there's one thing I'm sure of -- the world is changing. Things will not always be as they are. But there's another thing I'm sure of -- out of the plethora of works from our age, some will survive – those that are most popular, that currently exist in millions of copies, in multiple languages and multiple formats. They may survive only in derivative versions, or garbled copies of copies, or through word of mouth, and a collective memory of the essential elements of each story.
Beowulf used elements from preexisting stories, and scholars debate whether some were based on historical events. We may never know, but the stories live on because of the joy in retelling.
Toward the end of The Two Towers, Sam recalls how Beren got the Silmaril from the Iron Crown in Thangorodrim, then says, "But that's a long tale, of course. And why, sir, I never thought of that before! We've got some of the light of it in that star-glass that the Lady gave you! Why, to think of it, we're in the same tale still! It's going on. Don't the great tales never end?"27
The Lord of The Rings could be the Beowulf discovered by those who live 1000 years from now, when laws and technologies and language are different. And it will inspire a future Tolkien.
Those who've read The Silmarillion know that The Lord of the Rings was only part of a vastly larger story. So, too, our present struggle to reconcile technologies only a few decades old with laws a few hundred years old, as important as it is to our generation, is only a short paragraph in the multi-volume set of human creativity. Humans have been creating art for 75,000 years.28 Copyright law is a small and passing thing. Minstrels will continue to write and sing.
"And when Sam heard that he laughed aloud for sheer delight, and he stood up and cried 'O great glory and splendor! And all my wishes have come true!' and then he wept. And all the host laughed and wept, and in the midst of their merriment and tears the clear voice of the minstrel rose like silver and gold . . . until their hearts, wounded with sweet words, overflowed, and their joy was like swords, and they passed in thought out to regions where pain and delight flow together and tears are the very wine of blessedness."29
I apologize for any errors, omissions, or non-standard formatting in these footnotes. In the desire to post this as soon as possible after the talk, I have not taken the time to check them, but will in the coming
days er, months . . ..
8 17 U.S.C. § 102 (a).
9 17 U.S.C. § 504 (c) (1).
10 17 U.S.C. § 504 (c) (2).
11 17 U.S.C. § 505.
12 17 U.S.C. § 102 (b).
13 "Computer 'languages' such as 'C++', BASIC, Pascal, FORTRAN, COBOL, which express abstract principles of computation, are considered noncopyrightable, being regarded as synonymous with the systems and ideas they are meant to implement in a computer." Robert P. Wade, Legal Opinion on Languages and Alphabets, February 23, 1999, available at http://www.geocities.com/Athens/Parthenon/9902/legalop.html.
14 See, i.e., Lotus Development Corp. v. Borland International Inc., 49 F.3d 807 (1st Cir. 1995).
15 Program on Information Justice and Intellectual Property Copyright Listserv
16 17 U.S.C. § 512 (c) (3).
17 17 U.S.C. § 1201 et. seq.
18 See, i.e., Richard Stallman, Can You Trust Your Computer?, available at http://www.gnu.org/philosophy/can-you-trust.html.
19 17 U.S.C. § 107.
21 Joke stolen from Laurie Krauz.
22 Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569 (1994).
23 17 U.S.C. § 512 (d) (3).
24 17 U.S.C. § 512 (c) (3).
25 17 U.S.C. § 512 (g).
26 Center for the Study of the Public Domain, Duke Law School, Access to Orphan Films (submission to the Copyright Office -- March 2005). (PDF link)
27 J.R.R. Tolkien, The Two Towers, p. 408.
28 World's Oldest Jewellery Found in Cave, Guardian Newspapers, April 15, 2004.
29 J.R.R. Tolkien, The Return Of The King, p. 933.