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A Sub-Prime Market for Derivative Works

February 23, 2010

One of the most common and murky issues that arise in the intersection between Copyright and the First Amendment is the status of fan-made derivative works.  These little gems of original expressions range from fan-fiction to tributes to outright parody.  With digital publishing in the internet society, it’s become easier than ever to make and share such works, and speech has correspondingly flourished.  Just take a look at these remakes of classic Nintendo games, available to you for free because someone just loved the franchise enough to want it broadened and enjoyed over and over again, not because they were driven by some profit motive.  Or, for another perfect (and Nintendo-related) example, take a look at this image:

Link Floyd

Link Floyd

Assuming that someone owns the copyrights on the original images, this image is pretty clearly a Copyright violation as both a derivative work and a copy of the originally protected works. But common sense seems to suggest that this image shouldn’t violate Copyright because the creator did something new here.  The gut feeling of moral and creative justice (that I get at least) seems to suggest that it is not the first creator that deserves every subsequent payday; to use a legal term, one believes that the “proximate” creator deserves some form of protection.  If the Copyright laws were written with today’s “remix society” in mind, nothing less would be expected.

However, in the real legal context, much of these “derivative works” violate the original copyright, even if significant changes are made or wholly new content is created and inserted into a protected context (e.g., Hyrule).  According to the letter of the law, the creator of the new work has violated Copyright by simply beginning to “prepare” such works, regardless of whether the work would eventually be protected as a “fair use.”  In the best case scenario, these derivative works creators are protected by economic forces and savvy rights-holders who realize that fan-generated content only bolsters their own franchises and those corresponding sales.  This is a case of enlightened self-interest, and it is luckily the inevitable progression of digital markets where “infringement” is frivolously inexpensive and widespread, and the derivative content increases the value to the original content by making the once-obscure more popular.(1)

Unluckily, the much more vast majority of rights-holders act like bulldogs and snap at anything and everything that looks supple enough to bite.  Most rights-holders (most notably the RIAA) will snap at anything that seems susceptible to lawsuit because that’s simply their adopted no-tolerance policy that is much easier to administer than a consideration of fair use or consumers’ rights, regardless of whether or not that decision is economically wise overall.

The only legal stopping points are the fair use doctrine and the “scenes-a-faire” doctrine (where a purportedly protected work has transcended the particular expression and practically become a Platonic form in terms of common usage).  Unfortunately–and in all likelihood deliberately–neither doctrine has any worthwhile bright lines that could safely guide a creator down a safe path to enjoying their favorite works in whatever ways they see fit.  This fact increases the transaction costs of vindicating one’s rights to fair use of protected content, and the regime itself therefore is censoriously overprotective.

Ironically enough, I am almost certainly secure in posting this image as a fair use because I am using it to comment and discuss the state of fair use law, and the original posting of the image might still be a violation.

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Notes

(1) This effect is wrapped up in what Chris Anderson called “the long tail,” for those of you who are unfamiliar with the concept.

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