Copyright Protection or Fan Loyalty—must Entertainment Companies Choose? Alternate Solutions for Addressing Internet Fan Sites
| Publication year | 2001 |
Introduction
Imagine you're an attorney for an entertainment company and one of your job responsibilities is to protect your company's copyrights. The company has, among other valuable properties, a top-rated television series. You discover someone is making unauthorized use of copyrighted images and sound clips from the hit show. Following standard procedure, you send out a cease-and-desist letter to the infringing party. The letter is effective and the person discontinues use of the material. Another job well done? Maybe not.
The infringement was on the Internet, and the infringer was a fan site owner. Although the fan complied with the demands of your letter and shut her site down, she has spread the word via the Internet to other fans about her unfair treatment. They form a large group of angry fans that plan an organized protest and a boycott of the show. Acting within your legal rights has cost the entertainment company something critical to its continued success: fan support.
A similar situation actually happened to 20th Century Fox Television (Fox) when it tried to enforce copyrights for the popular television show "Buffy the Vampire Slayer."1 Incensed owners of fan sites began a letter-writing campaign and organized a one-day blackout for all fan sites of every Fox show.2 The site operators, believing their sites provide an invaluable service to the studios by promoting the shows for free,3 argued that it was unfair to force loyal fans to remove material not intended to harm Fox's copyrights and from which no harm occurred.4
The public nature of the Internet creates unique problems in copyright enforcement.5 There are, however, practical solutions to the dilemma faced by entertainment companies who want to retain the loyalty of fans while protecting their valuable copyrights. This Comment will discuss those effective alternate solutions within the bounds of existing copyright law.6 First it will discuss the copyright law's relevance to Internet fan sites and set the framework for a discussion of enforcement options available to entertainment companies. Next, it will explore the merits and disadvantages of the traditional approach used by entertainment companies to enforce their copyrights against infringing uses on the Internet. Finally, it will examine in detail two unique model approaches with varying degrees of control by the copyright owners. Either of these model approaches may be used with success by entertainment companies to balance the need for continued fan support with the protection of copyrights.
Discussion of Copyright Law
The United States Copyright Act of 1976 is the controlling law protecting "original works of authorship."7 The Act guarantees copyright owners several exclusive rights.8 These rights include doing or authorizing another to: 1) reproduce the work, 2) prepare a derivative work based on the copyrighted work, 3) distribute copies of the work to the public, or 4) publicly display or perform certain types of works.9 Infringement occurs when one of these statutory rights is violated.10
Direct infringement is established by proof of one's ownership of a copyrighted work and of unauthorized copying of that work by the defendant.11 Ownership is evidenced in copyright certificates of registration and is generally not at issue in copyright infringement cases.12 Although it is often difficult to prove direct copying of material, the courts have found copying to exist by proof of a defendant's access to the copyrighted work, and a show of substantial similarity between the copyrighted work and the accused work.13 Copying may alternatively be shown by evidence of "striking similarity" between the copyrighted work and the alleged infringing work when it is not possible to show that a defendant had access to the copyrighted work.14
When applying the two-pronged test for copying to cases of fan site infringement, even though substantial similarity of the copyrighted work might be easily shown, it may be difficult to prove the defendant had access to the copyrighted works.15 A plaintiff might effectively argue that the television shows, movies, and publications idolized in fan sites are "widely distributed throughout the United States" and therefore are accessible to fans.16 Even if this access argument is unsuccessful, the alternative "striking similarity" test for copying easily overcomes the proof problem since most fan sites contain "virtually exact reproductions"17 of copyrighted material such as illustrations from books and magazines, movie trailers, audio files, and captured television screenshots.18 Finally, although it is unusual for an infringer to admit to copying, many fan site owners include admissions on their sites—perhaps not realizing such admissions may be used as evidence against them.19 Thus, it may not require much effort for entertainment companies to establish copying by fan site owners.
once copying has been established, a copyright owner must prove a violation of one or more of the exclusive rights granted to copyright owners.20 If the registered copyright owner's work has been used in any manner proscribed in section 106 of the Copyright Act without her permission, a valid action for copyright infringement exists.21
In an infringement action by Playboy Enterprises against Webbworld, a fee-based website that posted images identical to those in Playboy's copyrighted magazines, copying was shown through the "striking similarity" test.22 The images from the site were virtually identical to those in the magazine.23 The United States District Court for the Northern District of Texas then analyzed Playboy's claims that its copyrighted images had been reproduced, distributed, and displayed without authorization, concluding that infringement had occurred in each instance.24 Similar analysis may be used to reach the same conclusion regarding entertainment fan sites.
Fan Site Copyright Infringement Claim Analysis
Reproduction
The Webbworld court found the images were available on several of the defendant's computers at full-size and had been reproduced at a smaller thumbnail size for ease in image selection.25 Reproduction had first occurred when the defendants downloaded the images from Internet newsgroups to their own computers.26 This reproduction occurred without permission; therefore, Playboy's right to authorize reproduction of its images had been violated.27
Unauthorized images on fan sites may come from a variety of sources. With modern technology, it is simple to create or obtain a file for use on an Internet website.28 Existing digital files may be easily downloaded from an entertainment company's own site, other fan sites, or other Internet sources.29 Images or text may be scanned from printed materials.30 Sound recordings and motion pictures may be digitized and loaded onto a website.31 All of these usual methods employed by fan site owners to gather materials without permission constitute reproduction of copyrighted material.
Distribution
The purpose of the Webbworld defendant's site was to make images available for viewing and downloading to the site's users in exchange for a fee.32 Thus, the court held that the defendant effectively distributed the works by making the electronic images available for downloading and printing.33
Images posted on fan sites also may be easily downloaded or printed at the option of the site visitor even if not intended for such purpose by the site owner.34 However, "intent or knowledge is not an element of infringement, and thus even an innocent infringer is liable."35 Therefore, even without intending to distribute the materials, fan site operators could likely be found to have violated this exclusive right of copyright owners simply by placing unauthorized images on their sites.
Display
Courts have recognized a broad definition of display.36 "To 'display' a work means to show a copy of it, either directly or by means of a film, slide, television image, or any other device or process."37 Permitting an electronic file to be viewed on a computer screen is one form of display.38 However, display is only actionable as copyright infringement if the display is public.39 Public display occurs in a space open to the public or where a substantial number of people have gathered, other than a circle of family and social acquaintances.40
In Playboy v. Frena, the court determined that a subscription website audience, although limited to the number of subscribers, was sufficient to constitute a public display.41 Using the same interpretation of "public display," the defendants in Webbworld also violated the plaintiffs exclusive right to display the copyrighted works.42
Fan site owners that include electronic files of copyrighted works on their sites are indirectly "showing a copy of it" to anyone who visits their site. Fan sites are generally accessible to all Internet users without charge and therefore have a more "public" display than the subscription websites in the Playboy cases discussed. Therefore, owners of fan sites using unauthorized materials may be found to have infringed the copyright owner's display rights.
Fair Use Defense and Its Applicability to Fan Site Copyright Infringement
There are exceptions to the copyright owner's section 106 exclusive rights.43 Under certain circumstances described in section 107 of the Copyright Act, unauthorized use of a copyrighted work is permissible if the use is considered fair.44 A copyrighted work used for teaching, scholarship, comment and criticism (among other purposes) is considered a fair use and does not constitute copyright infringement.45 However, fair use is an affirmative defense to a claim of copyright infringement.46 Only a court can determine if the defendant has met his burden of proof as to whether his particular use was "fair" or not.47 Courts consider four factors to make such a determination:48
(1) the purpose and character of the use...
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