Succeeding in Your Business: Fan fiction, ‘Robot Chicken,’ fair use and the copyright laws

Cliff Ennico 

“I am a professional by trade, but evenings and weekends I’m involved in a local amateur theater group.

“Just for fun, our group set up a YouTube channel and recorded some short videos involving characters from popular movies and television shows and mixing them up. For example, we had actors dressed up like characters from the medieval-themed ‘Game of Thrones’ series sitting around a Manhattan diner table talking about life like the characters in ‘Seinfeld.’

“It was really just for laughs, but thanks to social media we built a huge following online.

“Maybe our following is too huge, because we’re now getting letters from lawyers representing the TV production companies asking us to remove our videos because they are infringing their copyright on the characters. Can they do this? I mean, ‘fan fiction’ has been around for a long time and no one seems to do anything about it.”

What you are doing online used to be called a “mashup” — a combination of two copyrighted properties for humorous or satirical purposes.

Probably the best known video “mashup” is Adult Swim’s “Robot Chicken” (www.imdb.com/title/tt0437745/), a stop-motion animated comedy sketch series where toys and action figures are used to put fictional characters in real-world situations (for example, an Imperial Stormtrooper from “Star Wars” bringing his bored tween daughter into battle on “Take Your Daughter to Work Day”). It sounds like you are doing something similar, except you are putting characters from one copyrighted series into another, radically different copyrighted series, with twice the risk of getting somebody really angry.

The copyright laws have long protected a copyright owner’s right not only to the works she creates, but also “derivative works.” So, the author of a Broadway play that’s made into a movie can claim copyright on the screenplay. If someone creates a work based on characters or situations taken from someone else’s work without permission, that’s copyright infringement.

But ... the copyright laws have also long protected an author’s right to create a “parody” of a popular book, movie or other creative work, on the grounds that parodies are “fair use” of the original copyrighted material. In probably the best-known case, an author took the story from Margaret Mitchell’s “Gone With the Wind” and retold it from the point of view of an African American slave on the Tara plantation. The author even went as far as to call her novel “The Wind Done Gone.”

Margaret Mitchell’s estate sued the publisher of “The Wind Done Gone,” claiming it was a derivative work of “GWTW.” A federal court disagreed, saying that even though the novel featured characters and events from the original “GWTW” story, the fact that the work was originally written (the author didn’t use any actual text or dialogue from “GWTW”) and told from a different perspective made it a non-infringing parody of “GWTW.”

On the other hand, a Swedish author who published a book entitled “60 Years Later: Coming Through the Rye,” featuring a 76-year-old Holden Caufield from J.D. Salinger’s “Catcher in the Rye,” found his book banned in the U.S. because his character wasn’t all that much different than the original Holden.

Generally, a work will not be considered “derivative” of another work if it is “transformative” — changing the original work to the point where it becomes copyrightable on its own. The U.S. Supreme Court uses a vaguely worded four-part test to determine whether a work is “transformative,” but in practice the courts consider:

— Whether any dialogue, text or specific content of the “derivative work” is copied verbatim from the original;

— Whether the work uses original characters, or shows a new or different dimension of familiar characters not contained in the original work;

— Whether it has “social value” independent of the original work;

— Whether the work uses characters the original author has trademarked (don’t even THINK about using Mickey Mouse!);

— Whether the original work is still under copyright or is in the “public domain”;

— Whether the work injures the reputation or marketability of the original work, or enhances it; and

— Whether the work is one the author of the original work might actually create if given time (a “next generation” work featuring characters who appear only as children in the original work, a “lexicon” of a fantasy language such as Klingon, or a “tourist’s guide” to a mythical realm in the original work, are likely to be considered derivative works and not parodies).

The good news is that your “mashup” videos stand a good chance of being considered “parodies.” The bad news is that your theater troupe doesn’t have the resources to defend your position in court against major motion picture and TV producers. Successful parodists like “Robot Chicken” or music’s “Weird Al” Yankovic take great pains to get permission from copyright owners before producing their parodies. You will need to do the same going forward. For now, take the videos down.

Cliff Ennico (crennico@gmail.com) is a syndicated columnist, author and former host of the PBS television series “Money Hunt.”

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