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takedown_analysis [2017/02/18 18:29] – [Fair Use Analysis] edit to clarigy Carlos Pedraza | takedown_analysis [Unknown date] (current) – external edit (Unknown date) 127.0.0.1 | ||
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====== The Shoe is on the Other Foot ====== | ====== The Shoe is on the Other Foot ====== | ||
- | // | + | // |
{{TOC}} | {{TOC}} | ||
< | < | ||
//**__ __**// <wrap lo>**By [[user> | //**__ __**// <wrap lo>**By [[user> | ||
</ | </ | ||
+ | |||
+ | <wrap lo>// | ||
After an anonymous fan of //Prelude to Axanar// posted [[prelude_fan_edit|his version]] of the short, unauthorized Star Trek film on February 15, 2017 — edited to tighten the story and replacing [[Alec Peters]]' | After an anonymous fan of //Prelude to Axanar// posted [[prelude_fan_edit|his version]] of the short, unauthorized Star Trek film on February 15, 2017 — edited to tighten the story and replacing [[Alec Peters]]' | ||
- | That action, normally straightforward on YouTube, instead opened up a myriad of questions surrounding the legal standing of a production that itself just avoided an infringement verdict going on to claim copyright protection for its own unauthorized work. | + | That action, normally straightforward on YouTube, instead opened up a myriad of questions surrounding the legal standing of a production that itself just avoided an infringement verdict, going on to claim copyright protection for its own unauthorized work. |
===== Settlement Terms ===== | ===== Settlement Terms ===== | ||
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Following the takedown, YouTube' | Following the takedown, YouTube' | ||
- | |||
- | Contacted soon after the fan edit was posted, Axanar spokesman Mike Bawden told **AxaMonitor** pursuing a fan edit moved Axanar' | ||
<WRAP right round info 50%> | <WRAP right round info 50%> | ||
{{ :: | {{ :: | ||
<wrap lo>< | <wrap lo>< | ||
- | The [[wp> | + | The [[wp> |
</ | </ | ||
+ | |||
+ | Contacted soon after the fan edit was posted, Axanar spokesman Mike Bawden told **AxaMonitor** pursuing a fan edit would move Axanar' | ||
> Quite honestly, I’m encouraging everyone to move along and continue with the planning required to produce the two fifteen-minute segments we’re allowed to produce to tell the story of //Axanar//, so I can’t say anyone is going to do anything about this.((Email from Mike Bawden to AxaMonitor editor Carlos Pedraza, 2/15/17.)) | > Quite honestly, I’m encouraging everyone to move along and continue with the planning required to produce the two fifteen-minute segments we’re allowed to produce to tell the story of //Axanar//, so I can’t say anyone is going to do anything about this.((Email from Mike Bawden to AxaMonitor editor Carlos Pedraza, 2/15/17.)) | ||
- | Peters' | + | Peters' |
Bawden did not respond. | Bawden did not respond. | ||
+ | |||
+ | <wrap lo>//See also: [[prelude_fan_edit# | ||
Since the takedown, others tried re-posting //Prelude: Redux// on YouTube. Each one received a takedown notice. The version posted by Australia' | Since the takedown, others tried re-posting //Prelude: Redux// on YouTube. Each one received a takedown notice. The version posted by Australia' | ||
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> Before the term "fan edit" was coined, many " | > Before the term "fan edit" was coined, many " | ||
- | Admittedly, the legal status of fan edits is unclear under copyright law. Fan editors claim fair use (just as Axanar did to justify making //Prelude// in the first place) because a fan edit " | + | Admittedly, the legal status of fan edits is unclear under copyright law. Fan editors claim [[#fair use analysis|fair use]] (just as Axanar did to justify making //Prelude// in the first place) because a fan edit " |
===== Can Axanar Claim ' | ===== Can Axanar Claim ' | ||
- | Unlike | + | Studios like CBS, Paramount, Lucasfilm and Disney have a clear copyright |
> Axanar does have a copyright in this film, at least in the original elements that they contributed. Even though it may be an unauthorized derivative work, the creator of the unauthorized derivative work still owns the copyright in it — even though the overall work may be infringing and he doesn' | > Axanar does have a copyright in this film, at least in the original elements that they contributed. Even though it may be an unauthorized derivative work, the creator of the unauthorized derivative work still owns the copyright in it — even though the overall work may be infringing and he doesn' | ||
- | And while Guideline No. 9 prohibits Axanar from // | + | {{ : |
+ | |||
+ | And while Guideline No. 9 prohibits Axanar from // | ||
> Under the law, you can have a perfectly valid copyright without registering it. Registering it is especially problematic for the studios because not only does it put the claim of copyright on record, but it is a prerequisite to filing a copyright infringement lawsuit. | > Under the law, you can have a perfectly valid copyright without registering it. Registering it is especially problematic for the studios because not only does it put the claim of copyright on record, but it is a prerequisite to filing a copyright infringement lawsuit. | ||
- | But without the registration, | + | But without the registration, |
==== The Anderson Case ==== | ==== The Anderson Case ==== | ||
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When based on the " | When based on the " | ||
+ | |||
+ | <WRAP right round info 50%> | ||
+ | < | ||
+ | // | ||
+ | </ | ||
+ | <wrap lo> | ||
+ | </ | ||
He concluded, "The law is really, really unclear on this point." | He concluded, "The law is really, really unclear on this point." | ||
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=== Filing a Counter-Notice === | === Filing a Counter-Notice === | ||
- | According to the Electronic Frontier Foundation, people who have had content taken down can submit a " | + | According to the Electronic Frontier Foundation, people who have had content taken down can submit a " |
=== Two-Week Ticking Clock === | === Two-Week Ticking Clock === | ||
- | The fan editor and other posters of //Prelude: Redux// told **AxaMonitor** they have filed counter-notices, | + | The fan editor and other posters of //Prelude: Redux// told **AxaMonitor** they have filed counter-notices, |
"This is consequently a higher stakes game … because the rightsholder does not have a cheap and fast way to keep the video down, short of suing you," the EFF noted. | "This is consequently a higher stakes game … because the rightsholder does not have a cheap and fast way to keep the video down, short of suing you," the EFF noted. | ||
- | |||
==== Can Axanar Sue? ==== | ==== Can Axanar Sue? ==== | ||
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It remained to be seen whether CBS or Paramount planned to take any action with regard to Axanar' | It remained to be seen whether CBS or Paramount planned to take any action with regard to Axanar' | ||
+ | |||
+ | <WRAP tip> | ||
+ | [{{ : | ||
===== Fair Use Analysis ===== | ===== Fair Use Analysis ===== | ||
- | As it turned out for Axanar in its lawsuit, a federal judge rejected its argument that // | + | <wrap lo>As it turned out for Axanar in its lawsuit, a federal judge rejected its argument that // |
**Is the video transformative? | **Is the video transformative? | ||
The fan editor would say yes to first under the theory that his cut comments on the original work and transforms it into a new interpretation. Posted for free on YouTube, and free of any surrounding commercial endeavors based on the work — which severely weakened Axanar' | The fan editor would say yes to first under the theory that his cut comments on the original work and transforms it into a new interpretation. Posted for free on YouTube, and free of any surrounding commercial endeavors based on the work — which severely weakened Axanar' | ||
+ | \\ \\ | ||
**Is the video a substitute for the original? Would people still want to buy the original after seeing the video?** \\ | **Is the video a substitute for the original? Would people still want to buy the original after seeing the video?** \\ | ||
- | Axanar could certainly argue the intent of the fan edit is precisely to substitute for the original. But Axanar is prohibited under the settlement from ever selling copies of // | + | Axanar could certainly argue the intent of the fan edit is precisely to substitute for the original. But Axanar is prohibited under the settlement from ever selling copies of // |
+ | \\ \\ | ||
**How much of the original work did the fan editor take, both quantitatively and qualitatively? | **How much of the original work did the fan editor take, both quantitatively and qualitatively? | ||
//Redux// would not fare so well under this examination since it uses nearly all of the original work, shaving off four minutes from // | //Redux// would not fare so well under this examination since it uses nearly all of the original work, shaving off four minutes from // | ||
+ | \\ \\ | ||
**Was the purpose of his use non-commercial, | **Was the purpose of his use non-commercial, | ||
Already established as non-commercial, | Already established as non-commercial, | ||
+ | \\ \\ | ||
+ | **If the fan editor' | ||
+ | Since Axanar had already agreed never to monetize //Prelude// the film has no economic or market value likely to be affected this or any other fan edit. {{: | ||
+ | </ | ||
- | **If the fan editor' | + | <WRAP tip 75%> |
- | Since Axanar had already agreed never to monetize | + | <wrap em> |
+ | Discuss this article in [[face> | ||
+ | </ | ||
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**Keywords** {{tag> | **Keywords** {{tag> |