Can Fanworks Tarnish Voldemort?
An Examination at the Intersection of
Fanworks, Trademarks and Fair Use
Presented by Heidi Tandy, Esq. #INTA2018
...is to designate
But words have many other uses,
Is a brand a social entity?
Fans want to talk about what they love, and use what they love in those conversations.
- Narratives, Art, Songs, Plays, Memes, Bumper Stickers, Sculptures, Cosplay, Vids, Comic Strips, In-Character Twitter Accounts, Cocktail Recipes, Cookbooks, Films, Manips, Websites, IRL Tours...
- Created "by fans for fans."
Side note: Does anyone even make
This list includes a range of content that can be noncommercial or commercial, but can be able to make Fair Use of trademarks in either circumstance, as the commercial nature of the follow-on work is not the sole determinor.
Can a brand’s audience be confused between expressive fanworks & authorized works/merchandise?
Is there a distinction without a difference?
This image from an etsy store showcases works that include a trademarked element from the Harry Potter series - namely, the House colors - but use it in a way that has a commercial element, but otherwise meets the criteria for Fair Use of a trademark (as well as of a copyright).
- Include sexual content?
- Include "offensive" content?
- Criticize the mark owner’s beliefs?
- Directly criticize or attack the mark owner or its products or services
- Or all of the above?
And which of those are protected by the First Amendment?
What's the definition of "sexual content"?
Who's standard is offended?
Emo Kylo Ren would be disappointed by anyone tarnishing his grandfather.
Do we need to distinguish between social commentary and commenting on goods/services of a ‘famous’ mark owner?
If a poster is 1st Am Expression
Fans use marks in creative conversations.
Again, fans make a point about the Harry Potter series by using a trademark from the Harry Potter series - the Weasley Sweaters - as well as the trademarked characters, who are also protected by copyright.
IT MAKES AN IMPACT.
The original cast for Harry Potter & the Cursed Child, opening in May, 2016 in London.
What was once idealized as completely wholesome can develop other meanings.
Can a “sexy and playful” brand be tarnished by a brand used on sexually explicit content?
If the infringer's intent is something other than commercial piggybacking off the mark owner...
Is the standard whether usage is "misleading"?
The Supreme Court has not upheld a restriction on non-misleading commercial speech in over two decades.
They didn't in "Tam".
"A trademark may be used lawfully in ways that the tm owner may find offensive."
of the follow-on user are not irrelevant
"Corral, loosely, the fan sites" or send sober, polysyllabic legal cadence?
"We require users to respect our copyrights, trademarks, and other IP rights." --Mtv ToU
if so, how?
Dalek Kimono available on etsy in May, 2016.
You can use Wizards' IP to make fan content