Utne’s own Julie Hanus recently reported on some promising and ingenious ways in which the fair use doctrine is thriving, but technicalities are still tripping up artists who should be protected by fair use.

Producers of the intelligent-design documentary Expelled have been exonerated in court after Yoko Ono and EMI Records sued the filmmakers for including a 15-second clip of John Lennon’s “Imagine”—but not without some difficulty. The film was released on DVD without the clip while the case was pending, which, Cyndy Aleo-Carreira at the Industry Standard argues, is an unfortunate side effect of what should have been an open-and-shut case. What’s more, she points out, fair use might not be enough to protect those who can’t afford to defend themselves in court: “If a film with Hollywood producers has trouble using media clips, what hope does an average citizen have of using something without worrying about huge legal expenses that could result?”

But Anthony Falzone, blogging for Stanford Law’s Center for Internet and Society, hails the case as a victory for fair use, in part due to the efforts of Media/Professional Insurance to cover the legal expenses of Expelled’s producers and others sued in fair use cases.

At Slashdot, Ian Lamont reaches the same conclusion I did: It’s a bit ironic that the song sparking the lawsuit is Lennon’s utopian manifesto “Imagine.”

Image by orsorama, licensed under Creative Commons.

Fan fiction, in which DIY writers lift characters from books, films, TV shows, and other creative works and insert them into their own story lines, is booming—but its legality is murky, writes Canadian copyright lawyer Grace Westcott in the Literary Review of Canada.

U.S. law offers “significant copyright protection to distinctive fictional characters” and “derivative works,” reports Westcott, and in her view this would include most fan fiction. But she gives air time to an alternative argument put forth by Rebecca Tushnet, a Georgetown University law professor and a fanfic writer who argues that the form constitutes fair use. Tushnet founded the Organization for Transformative Works to push the view that fanfic is a “new expression of transformed ideas” and thus protected.

“It may be that [fan fiction’s] shadowy status—largely tolerated, but legally vulnerable—leaves it just where it ought to be, in a healthy state of tension between fans and authors,” Westcott concludes. “Because the fact is that fan fiction has so far been able to operate as a tolerated use, if not a fair use.”

Her lawyerly advice? Keep it out of the courts by establishing “an online code of respect that recognizes and addresses authors’ rights and legitimate concerns.”

Westcott doesn’t even consider the thornier question of fan fiction based on real and often living people, for instance, the “bandslash” or “bandfic” phenomenon (see the Utne Reader’s recent “Slasher Girls”) built around rock-star characters and often homoerotic subplots.

Her hope for some sort of handshake agreement seems at once practical and unrealistic: practical because fanfic might lose ground in court, but unrealistic because the very sort of independent creative spirit that created fanfic will bristle against any sort of conduct code. And because any day now, Sting will Google himself, find an account of himself blowing Stewart Copeland, and phone his lawyers.

Thanks, Arts & Letters Daily.

United States copyright law protects “original works of authorship” for 70 years after the creator’s death. After that, the work enters the public domain and may be reproduced freely. Instead of waiting for the whole 70 years to expire, the art blog ni9e is encouraging copyright owners to donate their intellectual property to the public domain immediately after their death. “Why let all of your ideas die with you? Live on in collaboration with others. Make an intellectual property donation,” the blog declares. The site has created a public domain donor sticker to place on the back of your driver’s license that says “in the event of death, please donate all intellectual property to the public domain.”

Questioning the legitimacy of the sticker, I called the U.S. Copyright Office and spoke with Steve Withers, a copyright information specialist. Withers hadn’t heard of the movement to encourage intellectual property donation, and said the sticker might not be legally recognized.  However, he told me that if you want to ensure your intellectual property is donated to the public domain following death, you can send a letter of statement to the U.S. Copyright Office or include it in your will.

(Thanks, The Art Law Blog.)

—Sarah Pumroy

Image from Tombstone Generator.