I'm honestly not going to quibble over the points of this because as intelligent as I consider myself to be, and as clearly as I think I understand US copyright law and even articles of the Berne Convention, my gut tells me that until some fan actually goes to court and *wins* and sets a precedent (in the US at least), we're still paddling in murky waters. The last few passes made at the copyright law by the US Congress have been pretty solidly in favor of the original copyright holder (and you know, only reinforced when that holder is someone as big as Disney). Now, I may well hold the copyright to my derivative works, and in fact, I assume I do, but seriously, in a case of breach, unless I'm willing to go to court to fight it out, (and I probably have lawyer friends who would fight it with me) I'm sticking to my story -- and my caution.
So, yeah, it's absolutely possible that a fan in the UK might get away with something a fan in the US can't (given our propensity for litigation both serious and frivolous). Academic and theoretical law aside -- there hasn't been a test case yet that I know of, where the fan won -- or even where one lost. And while I may be in a better position than some to actually resist a C&D, I'm not entirely sure I would, because casting what is now gray into black and white, may not exactly be anyone in the fan community wants. Including myself. Would it be cool to be able to take my derivative works and actually, legally, be able to make money off them? Possibly even a living? Uhm, yeah, it might be at that, and that's where the precedent might direct us, if it's ever pressed. But the profit thing seems to be the tripping point right alongside the Trademark issue.
I *don't* disagree with you in theory. And I'm as unlikely to try and take on (even friendly discussion) the intricacies and tangles of international copyright law, which is, admittedly very different in the UK or in Japan, both in content and in execution of those rights, most of the stuff I play with is covered first under US law, the copyright held by US companies, and they are, in the very mildest form, somewhat of a sleeping tiger in my opinion.
The truth is that as far as I know, the argument for fan produced works as legally protected derivatives hasn't been tested in the US courts. There's probably been a half-dozen C&D's passed out in the past year that I know about, and no fan has yet to stand up and challenge that order. They merely take their stuff down, wait a bit and put it back up, usually under slightly better control, and the legal appetites of the attorneys on call are satisfied and everyone goes about their business with only a few warning growls from the tigers. As for Vidders, I think the RIAA has been pretty clear about what it thinks of fans "appropriating" music and lyrics for their own use without paying royalties. And about what lengths they will go to not only stop it but *prosecute* it. Granted, vids aren't generally or traditionally distributed in such large numbers that they actually call attention to themselves -- you know, until someone outs them online and the distribution rate jumps from hundreds of copies to *thousands* in a matter of a few hours . (I don't think that's actually happened yet, but the potential is there.)
Re: Just to clarify
I'm honestly not going to quibble over the points of this because as intelligent as I consider myself to be, and as clearly as I think I understand US copyright law and even articles of the Berne Convention, my gut tells me that until some fan actually goes to court and *wins* and sets a precedent (in the US at least), we're still paddling in murky waters. The last few passes made at the copyright law by the US Congress have been pretty solidly in favor of the original copyright holder (and you know, only reinforced when that holder is someone as big as Disney). Now, I may well hold the copyright to my derivative works, and in fact, I assume I do, but seriously, in a case of breach, unless I'm willing to go to court to fight it out, (and I probably have lawyer friends who would fight it with me) I'm sticking to my story -- and my caution.
So, yeah, it's absolutely possible that a fan in the UK might get away with something a fan in the US can't (given our propensity for litigation both serious and frivolous). Academic and theoretical law aside -- there hasn't been a test case yet that I know of, where the fan won -- or even where one lost. And while I may be in a better position than some to actually resist a C&D, I'm not entirely sure I would, because casting what is now gray into black and white, may not exactly be anyone in the fan community wants. Including myself. Would it be cool to be able to take my derivative works and actually, legally, be able to make money off them? Possibly even a living? Uhm, yeah, it might be at that, and that's where the precedent might direct us, if it's ever pressed. But the profit thing seems to be the tripping point right alongside the Trademark issue.
I *don't* disagree with you in theory. And I'm as unlikely to try and take on (even friendly discussion) the intricacies and tangles of international copyright law, which is, admittedly very different in the UK or in Japan, both in content and in execution of those rights, most of the stuff I play with is covered first under US law, the copyright held by US companies, and they are, in the very mildest form, somewhat of a sleeping tiger in my opinion.
The truth is that as far as I know, the argument for fan produced works as legally protected derivatives hasn't been tested in the US courts. There's probably been a half-dozen C&D's passed out in the past year that I know about, and no fan has yet to stand up and challenge that order. They merely take their stuff down, wait a bit and put it back up, usually under slightly better control, and the legal appetites of the attorneys on call are satisfied and everyone goes about their business with only a few warning growls from the tigers. As for Vidders, I think the RIAA has been pretty clear about what it thinks of fans "appropriating" music and lyrics for their own use without paying royalties. And about what lengths they will go to not only stop it but *prosecute* it. Granted, vids aren't generally or traditionally distributed in such large numbers that they actually call attention to themselves -- you know, until someone outs them online and the distribution rate jumps from hundreds of copies to *thousands* in a matter of a few hours . (I don't think that's actually happened yet, but the potential is there.)
(continued next)