Actually Syaoran Li
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On the Responsibility of Creators and Consumers

After reading thelastdogfighter’s very interesting post and a lively debate on twitter on matters directly related to this, I decided to make a post relating my feelings on the matter of creative responsibility - in particular, the wrestling in regards to IP rights and how this effects a creator’s interaction with their fandom.

Some years back, Mercedes Lackey got burned on IP rights.  She was an active part of her own fandom, interacting with fans over a mailing list.  During this time, she published a book which one of her fans decided resembled ideas she had personally discussed with Ms. Lackey.  The fan sued for IP rights - and the fan won.

This has been a defining, even deciding, factor in how creators must interact with their consumers.  And things can get very messy very fast when you mix creators and consumers.

Copyright and trademark laws get very sticky in the matter of derivative works. The general consensus tends to fall on ‘if no money is being made, no big deal’.  Most fanfiction falls under these rules.  Fanart posted online falls under these rules.  A cosplay photo falls under these rules.  But what happens when money does start to change hands?  A commissioned fanart here and there, a related piece of jewelery produced, generic products being marketed towards your fans … what do you do now?

If you’re a big corporation you probably don’t care because the money being made is tiddlywinks compared to your monolith.  But if you’re operating on a slimmer margin, now you have a problem.  In particular, any one part of something being sold might not be copyrightable or fall under your IP because you borrowed it from something under Common Use, for instance, but the product is clearly derivative of your work.  To use my roommate’s webcomic as an example, the uniform of the university in-comic is not copyrightable, but if somebody started selling yellow cravats, brown vests, and blue shirts as a package, it would clearly be derivative of her work.

There’s a couple of different ways to handle it: on a case-by-case basis, or by a sweeping general response with targeted enforcement.  But you must handle it, as a creator, because if you don’t, you are sacrificing your IP rights by turning a blind eye.  In the eyes of copyright law, inaction is the same as condoning - unless you had no knowledge of it.  Essentially, if you demonstrably know about a creation based on your work making money and you say ‘oh well’, that person now has a piece of your IP pie.  If you demonstrably know about a creation based on your work that’s nonprofit and you later make money off of something that could be related, the creator of the derivative work has a slice of your IP pie (and your money!).

Let’s take my roommate’s comic as an example again.

Let’s say someone was commissioned to make a costume based off her comic.  That person, worried about Moonsheen and Chira being okay with it, contacts them to ask if they mind.  They must say no and order a cease and desist, or they may be shown to have legally given up the right to possibly hold down 3-dimensional reproductions of their 2D product in the future.

Now let’s say the same person was selling a costume they’d already made and marketed it as ‘Suit & Vest combo’ without mentioning Sfeer Theory.  Since the product is not copyrightable, as discussed above, Chira & Muun would not have to ping that person, and the person could be presumed to know nothing about about Sfeer Theory - they could go their separate ways.

Let’s say the same person decided to mass-produce the same outfit, though!  Now it’s getting suspicious and Chira & Muun would probably be best served to order a Cease & Desist.  Legally it may or may not float, but it’s not worth the risk to Chira & Muun.

Let’s say this person responded by saying they would not stop mass-producing the outfit.  Suing is not a viable option because of the sheer cost involved, and the payback would be too small.  What is the recourse?

They could enter negotiations to bring the person under their IP umbrella by requesting a percentage of the profits.  Perhaps the product could be made official by selling it from the comic’s website as well.  Or, if these options aren’t something Chira & Muun want to pursue, they could go to their fandom and request that the person’s product not be purchased by fans of Sfeer Theory.  If the product is niche enough to Sfeer Theory for the fans to be the main source of income, the product will dry up on its own as long as the fans respect the wishes of Chira & Muun.

When is a creator going too far?

The problem that then arises is when a creator or creative team is involved with their fandom.  If you are involved with your own fandom, you run a close risk of your IP rights getting punched in the metaphorical face.

Your best option is to maintain a professional and distant stance.  Do not look at/be actively aware of derivative works - if you look at them, don’t acknowledge you looked at them.  If you say anything, it’s going to be Word of God, you see - any opinion expressed, any thoughts you give out, they have more impact by virtue of you being the creator/part of the creative team.

Essentially, there is a sort of power in interacting with your own fandom.  It’s your responsibility to be aware of the impact.  That doesn’t mean you have to take responsibility for the actions of others, but know that your actions will be more likely to effect the actions of your fans.  Therefore, if you make a statement be ready to clarify and stand by it or be clear if you change your mind - in the case of IP rights, if you make a sweeping ‘please don’t sell X product’, know that there are going to be lots of questions about exceptions.  Know how you’re going to react.  If you decide to handle these things on a case-by-case basis, keep it private, because a public statement will automatically be a sweeping one.  In the domain of your work, your ‘opinion’ is fact.  It’s something to bear in mind!  And in the domain of your fandom, your opinion carries more weight than that of another fan, because it will reflect back on the original work itself.

And don’t go into every potential IP battle assuming the creators of the infringing work know what your product is.  You might be surprised to find it’s an honest mistake that’s been made.

What is your responsibility as a consumer/fandom member?

First of all, if you are a derivative works creator, don’t bring it to the official attention of the creator.  Unless they plan to bring you under their IP umbrella by selling your work themselves, for instance, they cannot legally know about your derivative creations and allow you to continue them, especially if you are turning a profit.

If you are asked to stop selling a derivative product, stop.  If you are arguing the product you are selling is not copyrightable/derivative, then sell it as a generic product without using the name brand of the original work to promote.  Even this is skirting what’s in good taste.  At least don’t be obvious about it.

If a creator reasonably asks you to stop buying products from one store or another, stop.  Don’t police for the creator, though!  They can handle themselves.  Death threats aren’t necessary - by depriving the store of its income you’re already sending enough of a message.

Anyway, that’s enough for one day.  *gets off high horse and goes to finish the work day*

BELATED DISCLAIMER: Although I’m privileged to know both Chira and Muun, I DO NOT SPEAK FOR THEM and everything in the above post is hypothetical situations.  Their decisions might be different from what I described here.  Sorry, guys!