Intangiblia™
Plain talk about Intellectual Property. Podcast of Intangible Law™
Intangiblia™
Professor Marc H. Greenberg - Decoding Intellectual Property in Fandom
Join us on an enlightening journey with Professor Marc H. Greenberg, the esteemed author of "Fandom and the Law," as we unravel the complex tapestry of fan-created content and its intricate dance with intellectual property law.
Discover how fans’ passion for media manifests in fan fiction, art, films, and cosplay, often blurring the lines between amateur and professional pursuits. With Professor Greenberg's expertise, we navigate the labyrinth of legal boundaries and explore how these creative endeavors can open doors to professional opportunities within the industry.
Get ready to discover how fan creators bravely navigate the legal landscape through concepts like nominative fair use. Together, we'll delve into the evolving relationship between passionate fans and the original creators they admire, exploring how fan suggestions can be beautifully woven into official works. This journey raises thought-provoking questions about intellectual property and the powerful influence of fandom.
Journey through the challenges posed by legal guidelines, like those from Paramount for Star Trek fan films, and understand the importance of staying informed about fair use law and its transformative doctrine.
As we venture into the future, we tackle the transformative role of generative AI in creative fandom, highlighting both its potential and challenges. From ethical considerations and legal battles surrounding AI-generated content to the impact of deepfakes, this episode ensures you're at the forefront of understanding the digital age’s impact on fan creativity.
Hear insights on safeguarding intellectual property, the pivotal role of legal counsel, and the strategic maneuvers creators must adopt to protect their rights in a world where AI’s influence is ever-expanding.
Join us for this essential dialogue on the intersection of fandom, creativity, law, and technology.
Fair use says it's OK to take somebody else's work under limited circumstances and use it without compensation or without permission.
Speaker 2:You are listening to Intangiblia, the podcast of intangible law plain talk about intellectual property. Please welcome your host, leticia Caminero talk about intellectual property.
Speaker 3:Please welcome your host, leticia Caminero. When we love something, we usually want to express it to the world. We want to empathize it. We want to find ways of communicating this love that we have. This is the root of fan-created content. You create art, you create films, you create products and you want to share them with the world. However, there are some intellectual property considerations that you need to keep in mind if you want to be part of this fan created content world and also if you want to create a business out of it. Let's hear what Professor Mark has to say about it.
Speaker 1:My name is Mark Greenberg. I'm a professor of law at Golden Gate University School of Law in San Francisco. I am in the process of becoming a professor emeritus, which means that I will be a retired law professor. In addition, I have been a member of the California State Bar, acting as an attorney in California in the US since 1979. So I have fairly extensive experience both as an attorney and as a law professor. I'm a native-born American, at the age of 71.
Speaker 3:Great. So the way that I learned about you, about your great profile, about your great contributions to the IP world, was thanks to your book Fandom and the Law, a guide to fan fiction, art, film and cosplay. So first let's establish what is fan fathom or fan fiction, and then we can go from there to start talking about the rights attached to those.
Speaker 1:Right, fandom is a phrase that has been defined in a variety of different ways, but primarily what it refers to in the context of the book that I wrote is those things which are created by fans, that are new, original works of art or other forms of creation which are created based on pre-existing material. So if you are a fan of a particular television show, you might write a story for that television show's characters and universe, or you might paint a picture of the characters or scenes in that book or television show. One of the key elements of fandom is therefore is to refer to the material as fan created. So this is created by fans. A key element of fandom creations is that these are amateur works. These are not that. Once you start talking about works being done by creators, that that are in the public eye, that are publicly available, then you're talking about professional work. But the amateur work which is available for people is usually available on a nonprofit basis. It's for free. Most of it is on the internet these days, and so that would be kind of what we're talking about with fandom in my book, pertaining to four areas of fan creation Fan fiction, which is literary works done by fans about things that they're fans of.
Speaker 1:So you have, for example, star Trek romances between Kirk and Spock. That's a kind of fandom that we see. And in addition to fan fiction, there is fan art, which is based on artistic works that fans do based on their favorite elements of fandom. So if they're fans of Wolverine from Marvel Comics, they may do art depicting Wolverine, and so that's fan art. Fan film is a more complex form of fan creation because it involves creating an entire movie. So that involves both the literary work and graphics and design and sound recording and sets and building all of this. Some fans get so excited about the things that they are excited about as fans that they actually go out and make movies based on the same fandom that others are writing stories or doing art on and expenses associated. But as filmmaking has become easier with digital tools, we are starting to see more fan films as well.
Speaker 1:And then the last area that I included in the fan creation area is cosplay, which is short for costume play, and basically this is something that you see parodied and made fun of in popular media. Oh, people coming to the conventions comic conventions like San Diego Comic-Con wearing outfits, wearing costumes, and that they think of as cosplay. That's really the entry level. Cosplay has become such a serious consideration and activity that there are some people who spend thousands of hours building elaborate costumes and makeup and they compete in competitions at conventions where they can win prizes of up to $25,000, $30,000 in cash and, more importantly, what they're competing for is an opportunity to have their cosplay viewed by Hollywood producers and Hollywood makeup artists and set designers and they can get hired. So cosplay is a path towards getting hired professionally as a costumer or makeup artist, and so that's been an interesting and another controversial area of fan creation.
Speaker 3:Like an audition in itself.
Speaker 1:Yes, yes, At the conventions and I talk about this a lot in my book at the conventions for the fan artists, they can meet. So let's say, you're a fan of the DC Comics world and you like Wonder Woman. I love her.
Speaker 1:So you've been drawing Wonder Woman as a fan and doing fan art. You can go to a comic book convention and sit down with an artist from dc comics and show your work and, if they like, it's called portfolio review. If they'd like the work, you might get a job working for your, for the company that you're.
Speaker 3:You're so, uh, such a fan of so your dream job, you can get your dream job absolutely Absolutely. If you're good enough and you, you're in the in the right, in the right place, because you have to meet with the right person, of course, right, you can get your dream job. Wow.
Speaker 1:Yes, you can get that opportunity, and so it's interesting because in fan created works, in that universe of fan created works, there tend to be two paths.
Speaker 1:Some people get into fan-created works because they aspire to work professionally in that field and they see it as an entry path. Other people do it purely for the joy of it, and those are the amateur artists. They don't want to make any money on it. They're excited if somebody reads their work. They're excited to be a part of an art community of writers and others who are interested in the work, that they can exchange ideas and stories. They can go to conventions and meet with fellow fan artists. Those are folks who are not in it for a financial reason at all. Their desire is purely for the community and to be a participant in that community, which is interesting because it means that for Hollywood, you can't get them to behave in ways you might like them to by offering them the prospects of career or money, because they're not interested in that and so they will. They will vigorously defend their, their right to create based on your work as a? Uh, something allowed under copyright law or and under trademark law, uh, and they're not looking to get financial compensation.
Speaker 3:They're just looking to be part of a community and for a recognition for their skill okay, so so, now that you mentioned the law, so let's talk about the intersection of IP in this universe of fan-created content and how you can see it from both sides. So from the side that you would like to have recognition for the work that you do in Fathom, or has the honor of the content, that you would like to protect or limit what is created in these forums.
Speaker 1:This is a great question. This is a very interesting part of the world of fandom. Is this tension that exists between intellectual property law and the desires of fans to create fan-created works based on pre-existing works? On pre-existing works? Copyright law is probably the law that has the biggest role to play in the fandom world. Trademark also has a role, but it's a lot lower in complexity, I would say. And for the fan creator, copyright's really a two-edged sword because, on the one hand, it protects the rights of the first or original creator who did the work your fan work is based on. Those folks have rights. If you infringe their copyright, you could get sued and be forced to pay damages or give up your work. On the other hand, the work that you create as a fan to the extent you have created something new or added something to the pre-existing canon that may exist about that work that belongs to you canon that may exist about that work that belongs to you you have copyright in your original work.
Speaker 1:But to the extent you're building off of someone else's work, you may or may not be infringing because there's a legal doctrine called fair use and fair use is the key legal doctrine in fandom and fair use is the key legal doctrine in fandom.
Speaker 1:Fair use says it's okay to take somebody else's work under limited circumstances and use it without compensation or without permission. There are circumstances in which you can make that kind of use. Now, one of the best examples of that that I use is criticism and comment about artwork. Fair use gives you the right to do that. Because fair use says if you take a relatively small portion of someone's work and you use it for criticism or comment and you're not affecting the market value of that work and you've taken a reasonable proportion of it, then that is not an infringement to the copyright. That's a huge right and at the heart of all fandom is work based on someone else's work. So if you didn't have fair use, there'd be no fandom. So fair use is really critical in the law and it applies both to copyright law and also, in a different way, to trademark law. How so?
Speaker 3:Sorry, how so in trademark? How so, how so in trademark?
Speaker 1:Well, it's interesting because, first off, you have to step back and say what is a trademark? A trademark is a brand. It's a brand name. It's how we know and identify something. So, for example, some years ago, before I got wisdom about this, I used to drink Diet Coke like crazy. I used to drink a case of Diet Coke every other day or so. I drank a lot of that stuff. It's pretty awful stuff, but it has a very distinctive taste and flavor. When I look at a bottle, at a can let's say a soda can of Diet Coke on a shelf, I don't know what's inside that can. I can't see it. It's covered in the can. So when I buy it, I'm buying it with the trust that, because I've bought this before and because I know this brand, I know what to expect. If I opened that can and I poured it into a glass and it was orange or green, I know what's wrong. Something was wrong because Coca-Cola isn't that color. I have this knowledge of the brand. That's the value of brands and trademark. Now, you use brand names to identify your goods or services and that's the value of a trademark. So the purpose of that mark is to identify the goods and services.
Speaker 1:If you, as a fan creator, want to use a reference to Coca-Cola, you're not using it to identify the brand or to sell the product. You're using it for a different purpose, for criticism or comment or maybe to poke fun. Those are called nominative uses and it's a term that then gets applied to fair use and combined. And so we say in trademark law you can make a nominative fair use and that is a use that is not the kind of use you would make if you were claiming the trademark in the work. And so for that reason, someone seeing your article where you talk about you know about the decline of Western civilization has been led by Diet Coke.
Speaker 1:They know you're not talking about the brand You're not referring to. You're not trying to pass yourself off as Coca-Cola company or as a dealer of Coca-Cola. You're making a fair use comment. And so again for fans. When fans want to use trademarked brands in their fan creations, if they keep it to the nominative fair use so it doesn't look like they're trying to impersonate that brand or create confusion about the source of the brand, then under trademark law you have a defense, the defense of nominative fair use. Does that make sense?
Speaker 3:yes, it makes perfect sense. So it's. It's, it's the the way that you go about it. So it's not. You're not um deceiving the public. You're not passing as the brand or has the all the products as if they were legitimate from the brand. Um, it comes to mind when you're talking about this um, I don't know if you have seen there's a lot of um fan created content, fan-created content, well, fan-created product of uh shoes, especially of uh sneakers. Uh, they, they, they buy the, the sneakers from the brand and then they make something amazing out of it, completely unrelated to the brand, but they keep it. But they keep the identifiers in the shoes so that if it's nike, adidas, jordan and so forth, uh, so this is a bit of a gray area in this.
Speaker 1:Yes, it is.
Speaker 3:Because you're not claiming that this comes from the brand, but people do identify it as a product from that brand and it can be deceitful in a way be deceitful in a way.
Speaker 1:It is that's a difficult case that you identify, because what's happened there is that the additional contribution you've made also adds value, and so it becomes more of a challenge to separate out those values and the creator who has added something of value and then has enhanced the value of the work.
Speaker 1:The interesting thing is that in some limited instances in IP law we've seen this happen, where the holder or creator of the original work accepts the new changes and adopts them and incorporates them into their work, and so this is another interesting element in fandom, and we've started to see this in ongoing or continuing series of work.
Speaker 1:So, let's say, a television show that's an episodic series, television shows that are multiple episodes, a book series or a comic book series, a graphic novel series, where we have multiple volumes of the work. When you have that situation and fans develop who are followers of the work, what we've started to see in the last oh, I don't know 30 or 40 years in particular is a rise of fans communicating directly with the production company and offering suggestions, suggesting new characters, suggesting new plot directions, suggesting fan-created twists to the programming, and the production companies take these on and, because they've got a rabid fan base, they want to reinforce that base and support it, and so oftentimes I've seen this happen, where people make suggestions from the audience at a convention and it shows up six months later on the screen Because somebody in that production team heard that suggestion. That's a good idea. We should do that idea. We should do that.
Speaker 3:And so it's fascinating because what it what this has led to is a blurring of the lines between the amateur fan and the professional and also you see that in in video games as well, that they um, they have these uh sandboxes in video games sometimes, that people can create anything that they want and then from they make new versions of the game and they incorporate, uh, this creation, either a world building or some character building or some even the story, so it's very much shapes the original content into something else. But it's amazing in a way. But it's also it could be tricky, because if you're, do you have the right to use it, even if it's created in your game, is created in your um, the in your work that you, that you made, do you have the right to just take it and use it, or do you need to go to that particular uh fan creator and ask for permission?
Speaker 1:It's fascinating as a problem, because what we tend to see is situations where somebody has decided to do a fan created work and they start building that work and the level of complexity gets to such a degree that the prospects for infringement are just too high. And it's been very interesting to see how motion picture and television studios have responded to fan works, to fan creations. One of the interesting sort of side approaches that I thought was a very creative one. Paramount Pictures some years ago filed a lawsuit against a fan film company that had done a fan film called the Battle of Axanar, which is about the Star Trek world, and what they did is they took from the famous character in the first series of Star Trek. They took Captain Kirk, as it makes a reference in one of the early episodes to how a famous Klingon colonel did well in the Battle of Axanar, and that's it. It's just a throwaway line. If you know the Sherlock Holmes stories, he makes reference in one of the stories to the adventure of the giant rats of Sumatra, and they never actually did a story of the giant rat of Sumatra, it was just a throwaway line. So the Battle of Axanar was a throwaway line in the first Star Trek series. This group of fans decided they would make a fan film of the Battle of Axanar. So they did and they made like a 40-minute film and they got sued by Paramount big time for copyright infringement and violation of a million different IP laws. What came out of it was something very interesting.
Speaker 1:Paramount developed a set of rules, guidelines. They called them to say if you'd like to make fan films based on the Star Trek universe, here are the rules. If you do it this way, you won't get sued. You can't use the name of any of the like, you can't say the Federation or use any of the names of our characters. You can't indicate that we're sponsoring or approving this, it can't be longer than 30 minutes and it can't be for profit. And then, as you're going through this list, then you start to see and you can't defame any characters and you can't have characters saying anything inconsistent with a character's typical statements and they start moderating content.
Speaker 1:Initially, it's all you know. You can't use our brand and things like that. That all makes sense. But then they start veering into their controlling content. Now you can go ahead and do whatever you want. You don't have to follow their rules. But if you follow their rules, you won't get sued, and if you don't, you might. Isn't that an interesting way in which they are trying to shape the way in which fandom and fan creators work with their material, and we're starting to see this quote guidelines approach show up with a variety of different creators issuing guidelines on how you can create fan works based on their work.
Speaker 3:But it's a very narrow narrow, narrow, right.
Speaker 1:That's exactly right. They're putting you into a narrow lane, making absolutely sure it will not damage their brand.
Speaker 3:Yeah, but then where is the creativity license? Gone License, yeah, gone.
Speaker 1:And it makes it even harder to be that creative, because you know that you're running a risk, because they've told you that if you violate these norms, these guidelines, they're coming after you.
Speaker 3:Yeah, and then it actually it harms the fun, because the fun is, uh, you can see it from their perspective, like I'm, I'm just trying to honor the work, I'm trying to further in, um, get myself inside this beautiful universe that I enjoy. So I just want to dream about it and create about it. So it's yeah, from the fan perspective, it's like you're mutilating my art.
Speaker 1:I saw this as a very negative development in fandom. Uh, this, this business of coming up with guidelines, um, because it contributes to the atmosphere of fear yeah, exactly, exactly and fear kills creativity yeah, the.
Speaker 3:And the moment you tell them everything that they cannot do is like yeah, but what can I? What you're telling me that I'm allowed to do? I don't want to do it right, right, right. It's an artificial constraint exactly so uh, apart from from these guidelines, what other legal considerations uh should fund uh creators, fund content creators should uh keep in mind regarding not ip and regarding specifically trademark?
Speaker 1:well, it's one of the areas that has been a lot very controversial in the world of fandom has to do with this topic. We've mentioned before this concept of fair use, um, and the definition of fair use has been a constantly changing landscape, and so this is something that I encourage fan creators to pay attention to is to find out what the latest cases are in the area of fair use, so you can have a sense of what you can or cannot do. There is a concept in fair use law that is called the transformative doctrine, and what this means is that if you have and let's say you take an original copyrighted work, let's say it's your story, it's the, it's the story of the first Star Wars movie, that's, that's the work you're taking, ok, now, okay, now, copyright law says that if you create a derivative work, a work based on the original work, you've now created a derivative work. So, let's say, you've taken a book and you made it into a movie. That's a derivative work. It's a work derived from the original work, but different. Okay, that's a derivative work. And the creator of the copyrighted work the person who created the original work. They also own the right to create derivative works based on their original. Sometimes they do that by. Let's say, if I wrote Star Wars the first episode, then I create this volume two as a derivative work based on volume one's universe. Okay, so that's how you can do that.
Speaker 1:What this transformative doctrine says is if you create your work based on someone else's original work and you add new elements, we will say that you have transformed the work. And if you've transformed the work by adding new elements, we will say that that is not a copyright infringement. You can have a copyright in your newly created work and you won't get sued for the previous work you took from because you've transformed it. That's the transformative test. Now it's a four-part test. It requires four different elements that have to be analyzed, have to be analyzed.
Speaker 1:Courts have been all over the map trying to figure out what is or is not a transformative work. Some courts have looked at some things and said, yes, this is clearly transformative. Others have said, no, it's not. And so there was a series of different cases that came down and I discuss all of these in detail in my book. A series of cases that came down about the limits and the scope of fair use. Now, obviously, this is very important for fan creations because all of their creations are derivative works. They all start with somebody else's work and then they build off of that. That's the essence of a fan-created work because it's a fan, you're admiring of somebody else's work and you wish to use it in your own new work. If the transformative doctrine protects you, you have a very broad range of things you can do. If it doesn't protect you, you're going to be infringing people's work and you're going to get sued for copyright infringement. So the scope of the fair use law is really critical to understand in order to effectively be a fan-based creator. But the law is shifting and changing like the sands in the desert and the Supreme Court has recently, in a case Goldsmith versus the Andy Warhol estate, walked back the broad grant of fair use rights they've given in the past and they've pulled it back and said no, we think some things can be infringing that particular case, the Goldsmith case.
Speaker 1:Lynn Goldsmith is a photographer of rock and roll artists. She took a famous photo of Prince when he was a young artist and it ran in magazines and she sold copies. And Condé Nast came to Andy Warhol and said we want you to create an original artwork to commemorate I think it was like the 10-year anniversary after Prince had died. After Prince had died, and so Warhol took Goldsmith's photo of Prince and did his typical treatment multicolors and sort of shadowing and so on and they ran that in the magazine. But then what Goldsmith didn't know about because Goldsmith was aware of this, he was okay with that what she didn't know is that Warhol did 10 other iterations of this of the Prince graphic and then, after Warhol died, the estate of Andy Warhol was selling them for thousands and thousands of dollars.
Speaker 1:Goldsmith sued Warhol's estate said transformative fair use, pretty, pretty straightforward. I mean clearly warhol's treatment was not the same as the photograph and what came out on the other end had new expression that he'd added court, this time the court, the supreme court. They went probably the district court and the court of appeals. Both said warhol states right, this is, this is a transformative fair use, no infringement. Us Supreme Court reversed. They said we think this goes too far. We think that you haven't added anything really new or original.
Speaker 1:The base of the work is still the original photographer's work, lynn Goldsmith's work, and you're using that without permission or giving her any compensation. This is not a fair use. Well, that threw the whole legal arena into a dizzying spin, because we now don't really know just how far you go to have to have a transformative fair use or not. It's very much up in the air and we are, as Indiana Jones said years ago, making it up as we go along. We're still trying to figure out what the parameters of the law should be. So for fan creators, I encourage you to be careful with transformation doctrine and don't just think it's okay. You should definitely have counsel review something if you think that potentially it could run into a copyright infringement problem. Or if you're trying to rely on the transformative defense, you need somebody to analyze it, based on the latest cases.
Speaker 3:It has become a case by case kind of which is something that is extremely nerve wracking. When you are trying to know which side of the law are you going to be standing, especially if you don't want to. If you don't want, you get to get yourself in trouble. You, you want to, trying to avoid legal issues. But is this, if there's no clear path and you don't know, it depends on if I get sued or not?
Speaker 1:well, it's. It's a term I used years ago in a Law Review article I wrote. It talked about the chilling uncertainty.
Speaker 3:I like that.
Speaker 1:And I think that's what happens here is that your expressive desires, your interest in creating, is chilled by the fear that you could get sued for what you create.
Speaker 3:Yeah, and even if you're trying to be careful, you don't know how careful you should be.
Speaker 1:That's really important. It's very important to understand that, because risk-taking is part of being an artist. But you want to be informed, of course. You want informed risk-taking, and the kind of risk that comes out of nowhere, where you had no idea that this could potentially be a problem, is very destabilizing.
Speaker 2:You are listening to Intangiblia, the podcast of intangible law playing talk about intellectual property.
Speaker 3:Now, we cannot talk about fandom without social media, because it is the universe in which we all exist, now, now, and this is where everything happens and communities get created and work gets published, emphasized, shared and so on. So how does social media amplify the legal challenges and make it even harder or better, according to how you see it, for the creators and also for the brands?
Speaker 1:Great question, and social media and the Internet in general has both become hugely valuable in fandom. If you want to write fan fiction, now there are thousands of sites and millions of pieces of fan fiction that are distributed on a regular basis, so there's a tremendous availability and opportunity for people to work on various platforms. There's a platform called Archive of Our Own, which is a fan fiction platform. They have thousands and thousands of young fan fiction writers on that platform. It's a safe platform, archive of Our Own. There's another one called DeviantArt, which is a fan site for artists. A lot of fan art goes up on DeviantArt.
Speaker 1:There are always a couple of things that I encourage fan creators, fan-based creators, to pay attention to. One is the TCU, the Terms and Conditions of Use, the TCU, which governs all of these different websites. So, for example, a popular site to put up fan art is YouTube, very popular. The terms and conditions of use for YouTube say anything that you put up on YouTube belongs to YouTube. They can take it, they can use it, they can modify it, they can alter it, they can do whatever they want with it.
Speaker 1:You give up a certain level of your rights by virtue of these terms and conditions of use. So what? I encourage anybody who is a creator who wants to upload material to social media get into their site, find out what the terms and conditions of use are, or whatever else they want to call it guidelines, regulations, submission guidelines know what they can or cannot, what the site can or cannot do with your content, and this is a vital thing for people who are creating content to make sure that they know what can can't be done with their content, and oftentimes they don't realize that there are some significant uh um advantages that they're giving away um, a long time ago, I wrote an article about social media and, uh, I read most of the terms of uh back then and it was uh, it was terrible.
Speaker 3:yes, everything that uh, and I remember that uh linkedin I don't know if they change it because it was many years ago. Linkedin had ideas. Also, has uh something that you were giving away by being a user Right Ideas, right.
Speaker 1:They own your mind.
Speaker 3:Exactly, they own your mind. Something that is not even protected cannot be protected through IP, so they own it.
Speaker 1:They're doing it by contract.
Speaker 3:Exactly so, whatever thought you have using their platform so according to their terms, is theirs? Yeah, so it's. So according to their terms, it's theirs. So it's very important to be informed, especially if your username has the channel of making yourself known, making your art known, making your content known. It's very, very important to understand where you're giving up and where you're accepting, because it's a great tool for you to get a platform.
Speaker 1:It's a great tool for you to publish your work, but also you can be taken advantage of or you can be giving away more than you would like we talked before we started today about the question of legal literacy and the ability of people to understand what the law provides and what their rights are, and for far too many creators, there is little opportunity made available to them to understand the legal obligations and benefits that the law provides for them as creators. And far too often, if you think about your daily life in this contemporary digital world, on how many days is somebody trying to scam you, trying to get in and get your money, get your assets, get control of something that you own or have? It is a predatory universe in the online world and far too often I find artists are too innocent about that and they don't understand, they can't believe how venal and awful some folks can be in trying to get their creations away from them, get their creations away from them, in trying to take their work and not give them attribution or any compensation. And so what I tell young artists all the time is if you want to make art for your family and your friends and you don't want it to go beyond that, you don't need my services and you don't want it to go beyond that, you don't need my services. But if you want to get involved in the selling of your art. Now you're in business and if you're in business you need to know the rules. You need to know how this business is done, because if you don't, you'll get taken advantage of.
Speaker 1:I used to teach a class called Legal Aspects of the Music Business and I taught this course to musicians who had never had any interaction with the legal business, but they wanted to get out to the music biz and I told them all of you, right now, you are guppies. A guppy is a little tiny fish. I said all of you right now are guppies in the sea. By the time we finish this course, you will be minnows. Minnows are about this big and I said and the sea is full of sharks.
Speaker 1:So when you're a guppy, you don't know enough, you just get eaten. When you're a guppy, you don't know enough, you just get eaten. When you're a minnow, you know enough to maybe swim out of the way. That's about the best I can do for you. I can't change the leverage. You won't have the leverage. You're a young artist starting their big production company, but at least you should know what they can do and how they do it and you should know how to try to protect yourself and, frankly, the law provides for some protection. Copyright law and trademark law do provide protection for creators If they know how the law works and they use it.
Speaker 3:I love that analogy. I love that analogy. I love that. It's very much like I give you the tools just enough for you to defend for yourself and then find more tools that keep growing, keep going up in the in the chain. That's it.
Speaker 1:The artists that I work with, many of, actually all of the same. That's it, uh, the artists that I work with, many of, uh, uh, actually all of the artists that I work with these days have at least 30 or 40 years of experience oh, wow they are deeply experienced.
Speaker 1:They're, all you know, in their 60s, 70s. They're still creating. These artists. No, they have been through through all of the, the terrible times and the predatory efforts, and so they've got a tough skin and they work with me and together we protect their rights. But it's a constant battle and it is war, it is aggressive battle. It is aggressive battle.
Speaker 3:I have to stand on the podium and stomp my feet and raise my voice and do everything I can to use every power I can to get my clients for their rights.
Speaker 3:Also, it's very much about making your right known, understanding your right and making it happen. That's one of the things that a lot of creators, entrepreneurs, creative entrepreneurs also don't understand. That the thing about IP in general and very much, it's very much of a right that you need to assert. It's not going to come out of thin air that oh OK, so this is my right and they're going to recognize it. No, you need to really assert your right and make sure that is that is being respected, because you you have to be vigilant. You have to pursue anyone who's doing unauthorized use, pursuing anyone who's doing anything that is infringing your rights, because if not, it's not going to happen. No one is going to pursue it for you. We do have some, of course, some sort of cases that it is enforceable by the public means and it has to be pursued publicly, but it's not the great majority and it's not necessarily going to happen without you being behind necessarily going to happen without you being behind, without you.
Speaker 1:You know you. You earlier talked about talking to the client who gave in. This happens a lot because artists are have a lot of, and creatives have a lot of fear. Oh, I couldn't sue them. How could I sue somebody? Oh, they have all the money, they have all the power. Oh, this is just how things always are. Yeah, the little guy always gets screwed. That's just life.
Speaker 1:It requires to protect your rights, a willingness not to give in like that. There are lots of sad cases like the one that you talked about, where lawyers get involved and they're actively working to defend their client's rights and the client gets nervous and caves in, accepts a poor deal, a poor deal, withdraws their claim and so much of what I do as the lawyer. Remember I was talking about the counseling function, a lot of that. I had this experience just recently. I had a client who had been in a terrible relationship with a very manipulative fellow who was serving as his manager, slash lawyer, and we had to deal with litigation. We had to file a lawsuit to get rid of this guy, to get to disentangle him from royalties.
Speaker 1:He had his fingers in a lot of my clients' money and when we filed a lawsuit, my client had never been involved in a lawsuit before and I explained to him listen, you need to understand that in a lawsuit it's like being on a river cruise Some days you're up, some days you're down, and there will be ups and downs throughout the process. It was really helpful for me to give him that context, because when we hit a bad patch, he understood. I had told him oh, this is one of those bad patch times, huh, when you're going down, I said, yeah, we'll be up and it will be doing well in a week or two. And, sure enough, we were. Clients need to understand that there is that rhythm that goes on back and forth, that when because standing up Takes a lot of courage and takes money, of course, I mean it's it's, it's a sad reality that there are very limited resources legal resources available to creatives if they lack the ability to pay legal fees.
Speaker 3:Yeah, that's the case that I was telling you about before. It was a very particular. It was a very straightforward case. It was such a clear violation was a very straightforward case. It was such a clear violation. A book publisher took visual content without the authorization of the visual artist. There was no question about that. It was his work. There was no question about the infringement. It was extremely clear. And he talked to me, let's say today, and the next week he called me again to say that he already signed and gave away his right because he didn't want to fight them, because he thought he didn't have he thought himself as not worthy of the fight, right, right and, and there was nothing I could do.
Speaker 3:I mean he was and with that case he could have been set for life, because even though he he was himself a very popular, established visual artist, he wasn't nearly has had his should have been economically because probably of this kind of mentality, because he saw himself as not worthy, and there was nothing that I could do as a lawyer to change his mind. And that happened many, many years ago, over 10 years ago, and for and I feel it still today, I feel the pain still today, because for me it was like, oh my God, I was, like we were, we, we could have changed your life with this and just by starting the lawsuit and settled it because I didn't want to go all the way to the Supreme Court no, just a good settlement for you could have changed your life, but he had other ideas.
Speaker 1:Yeah well, that fear is very powerful and it's one of the reasons why, after practicing for 21 years full-time, I became a part-time lawyer and a full-time law professor, because I realized that there was a crying need for education, not just about education of artists and creatives, but education of lawyers to represent artists and creatives, but education of lawyers to represent artists and creatives. One of my friends in the comics business writes a substack with her observations on a long career in comics business and she recently wrote a piece about legalese and, more importantly, the need, if you're a comic artist, to find an attorney who knows your industry, because this is one of the other things that creatives run into and don't understand. You're particularly fan creators. Let's say they get a, they they do a, a piece of fan fiction, and they get a note from a publishing company saying that this is infringing and they take it to their cousin who practices real estate law and they say, cousin, can you help me with this?
Speaker 1:And cousin, who's bored with real estate law? Here they're looking at a cool publishing law case, very interesting, oh yeah, sure. And then they just mess it up badly because they don't know the industry standards, they don't know the leading cases. They don't understand how leverage and negotiating power works. There's a million different things that you don't understand how leverage and negotiating power works. There's a million different things that you don't understand, and one of the real dangers in the creative arts arena is wannabe lawyers who want to be creative rights attorneys and they don't have the knowledge or expertise and think they can read a law review article or two and do it, and you can't.
Speaker 1:And so creatives have the difficult task of having to stand up for themselves and, as I explained to them, if you have a hairdresser who you don't like, you'll drop them in a minute. Why wouldn't you do that with your lawyer? We're service providers like the hairdresser, and so shop for your lawyer. Make sure there's somebody who can do this kind of work and has experience doing this work. There are experienced lawyers out there. Now it can be difficult.
Speaker 1:I received a phone call one day from two young men up in one of the more rural Midwest states wanting a day to heard about me through one of my books and they were interested in hiring me to represent them. They wanted to launch a comic book company and I said I was happy to do that and I gave them, I quoted them. My hourly rate was there was an intake of air as they oh my goodness, that's very expensive. And I said you know it is expensive. The fellow said well, you know lawyers around here in our rural state. They work for a lot less money. And I said you're absolutely right, they do. But the problem for you is to find the expertise that I have. You have to go to Los Angeles, san Francisco, new York, chicago, the major cities of the United States, and the cost of legal fees in those cities is what I'm quoting you, and so it's an unfortunate reality that specialized expertise in law, which is what you need to work on in this arena, is going to be expensive.
Speaker 3:Of course, and you get what you pay.
Speaker 1:Yes, and also, you know, sometimes I'll get a client and I'll explain. Well, you can register your work for copyright. There's a $40 fee. Oh geez, I don't have $40. You know what Get out of the business If you can't afford anything. You got to make a little bit of money to and spend a little bit of money to be able to make some success and you got to be able to protect yourself and unfortunately in the U S the way that works is you've got to be able to pay for lawyers and it's not a cost, it's an investment well, it's an investment.
Speaker 1:It's also, thankfully, under US tax law um, fully deductible. Perfect, on your on your taxes. This is a business expense. So if you're a creator and you're creating works, you're spending money. This is a business expense. So if you sell your work and get money in exchange, you deduct the cost of this business expense from your taxes. So there's no reason not to get legal counsel.
Speaker 3:Oh yeah, but that's amazing that I didn't know that. That's a great point and something to keep in mind. That's a great point and something to keep in mind. So now let's talk about the developments, or the legal developments, regarding this fan-created content. And where do you see, or where is the law heading towards?
Speaker 1:Well, probably, the biggest new development that's going to have a big impact on fan-created works is AI. Generative AI programs can create fan fiction, fan art. All you do is put in a prompt and the work gets created. So it's going to be very interesting to see how that has an impact on the fan community, because so much of the fan community is based on the fans' effort to kind of replicate the works that they love and they put their passion and their love for the particular show or television character or book character into their fan-created work. It seems to be a different order of effort if I can create fan fiction by saying give me a Star Trek story in which Bach and Kirk have a love affair, and generative AI spits it out in five minutes. The whole process, the love of it, the creative process really is changed by this.
Speaker 1:There's also the problem in AI of what's called hallucinations, which is we're seeing this with AI doing text. Let's say, a friend of mine actually did this. He put in his resume and said you know, generate a resume for me and it came up with jobs. He'd never had no Right Case briefs that have been done using generative AI. All of a sudden there's a citation of 10 cases. They're all made up. They don't exist. That's what's called hallucinations. So if you're using a generative AI program to create fan-c, fan created works, you have to be cautious about hallucinations. You got to go back through and read everything to make sure that it didn't go off in some weird tangent that the algorithm just thought made sense and it just threw it in.
Speaker 1:Um. We're seeing a real interesting pushback in fan art um, about generative art, art created by ai. So one of the interesting legal issues and battles we're dealing with, uh, is whether or not you have to watermark your artwork. So you have, you put a marking on it to say there's no AI in this or created using AI. So that's one of the big issues is disclosure in AI. Should you, as a creator, have to disclose that portions of your creative work were created using a generative AI program? And we saw.
Speaker 1:Another big issue that we're seeing with this is the ability to create deep fakes. So this is I can take a generative program to say give me an image of Jennifer Aniston, the actress, and have her smoking a cigar. She may not have ever smoked a cigar in her life I don't think she has from the look of her and she may not want that association. So you have to be careful in creating generative AI works, not to violate people's rights of privacy, not to violate their right of publicity, their celebrityhood rights, and AI allows you to do a lot of that. So I think probably the two trends that I think are the most important to watch, what happens with fair use after the Goldsmith Warhol case. Are there going to be more iterations on that question? And what is the impact going to be of AI on the fandom world and the fan-based communities? I think those are the two areas that I'd be looking at.
Speaker 3:And I read a few days ago that the AI that learns from AI-created content becomes less effective. So the more the AI learns from AI content, the less quality of the content becomes. So this debunks a bit the idea that creators are going to be completely replaced by AI. At least at the stage that they are right now, they still need human creators to draw from and to generate from, because the way that we create, the way that humans create, still cannot be completely replicated by an AI.
Speaker 1:I agree with you. I think, though, that what we're more likely to see as a result of the growth of generative AI programming is a two-tiered system of creative works. For those who are wealthy and can afford it, they can get original, new creative work by live human artists. For those with less resources, they'll get generative AI. They'll get works that were created using generative AI and very little in the way of a human hand, in the same way that there are inexpensive stores, discount stores, where you can buy cheap reproductions of art so this is the art that you buy because you want that. There's some red in this and you have a red couch. That's the criteria For that kind of art, for the cheap knockoff dime novel, that sort of thing. A lot of that's going to be created by AI because it's going to be cheaper to make.
Speaker 3:And also the combination of both of them, because you can use AI for editing. You can use AI for a lot of things, so for just brainstorming as well, like tell me a hundred plots of these scenarios, things like that. So it's not that we it's not to use AI, it's how to use it into your advantage. It's a tool. Exactly, it's a tool, and you can enrich your originality through this tool, but as it is right now, it cannot really replace human creativity for now, Until we create a super intelligence. Then there's another story.
Speaker 1:That's another story. No, I talked with an artist client of mine and I said you know, what do you think of AI? And she said I love it. I said what do you mean? And she says, oh, it's great for making brick walls, it's great for making a dirt field, it's great for clouds, you know, great for trees and leaves, simple things that are repetitive, that would take her hours to draw. She can use an ai generative program and bang, there it is. But will she ever use an ai program to draw a face? No, to draw action. No, to show grief? No, it doesn't have that nuanced level.
Speaker 1:The other point you were making about sort of the quality the interesting thing which I read about AI recently and I thought was a good comment the whole concept of generative AI starts with data mining. So you have a giant data set that you have to upload and then that becomes the basis from which the algorithm can create new works, which means that everything that it creates is based on something that's already existed. So where is that flash of brilliance from a creator who does something that you've never seen before? I happen to be a big fan of visual arts and graphic arts in particular. I'll come across a new graphic artist who has a technique I've never seen. I've never seen that look and that sparks my interest. That engages me because they've added something new to the creative universe. You can't really do that with AI. It's all based on things that have previously existed.
Speaker 3:I love that. Yeah, it's true. It's true. With that, how do you foresee the future between fans, creators, production companies and what do you foresee as the relationship moving forward? New ways of limiting the creations, the fan creations?
Speaker 1:Well, I think fandom is going to continue and flourish. It's a wonderful thing that we have opened the tap on all of this creativity and all of this pent-up desire to create things, to make things, to love the works that you enjoy and to want an homage to those works. So I don't think fandom goes away with the challenges of AI or fair use legal doctrine as long as we the one thing that kills the intellectual property arena is effort to suppress the creative desire and creative urge, as long as we can avoid that in our analysis and use of law and use law to support the creative process rather than suppress it. Society benefits the culture and the world benefit of expression, whether it be in the arts, in politics, wherever suppression always leads to bad results, and so I have to say that I'm cautiously optimistic for the future.
Speaker 3:But I recognize that things could go in a way that we hope they don't. So let's hope for the best and prepare for the worst.
Speaker 1:That's how you got to work.
Speaker 3:Thank you so much for this amazing talk. It's been a great pleasure meeting you and learning so much from you. I feel like I would have loved to be one of your students, because you have a very engaging way of talking about law law related issues, and this is something as a lawyer and another lifetime law student is very much appreciated, because when you make it so interesting to listen to understand and so easy to understand, it really much feels like you can tackle any legal issue without any problems. So thank you so much for sharing thank you.
Speaker 1:I strongly believe that legal education is about a tool set. If I give you that set of tools, effectively give you a set of tools, you can then use it for anything and the law is as it for anything, and the law is as diverse as human experience. And so I just I think it's great fun for me and I take great pleasure in seeing my students go forward and engage in the creative communities, help creators, help the arts. Nothing gives me more joy and pride.
Speaker 3:Thank you, thank you and yes, if you would like to give your socials where some potential clients may find you, please go ahead.
Speaker 1:Well, I'm reachable at M-H-G. My initials Mark Henry Greenberg, M-H-G. At Mark M-A-R-C Greenberg, G-R-E-E-N-B-E-R-G lawcom, so M-H-G at markgreenberglaw and I'll be happy to get back to people. I will tell you, as I explained to you, I have rock star hours, so I never do anything early in the morning and I am on the Pacific Coast here, so it's Pacific Standard Time and if you get a note from me at three in the morning, it is me and I am up then. So I look forward to hearing from anyone who's interested in having further discussion on these topics.
Speaker 3:Perfect. Thank you so much. Thank you for your time. My pleasure and we will surely invite you again soon.
Speaker 1:Thank you, I'd be happy to come back.
Speaker 3:We have reached the end of our episode.
Speaker 2:Greetings from Switzerland. Law plain talk about intellectual property. Did you like what we talked today? Please share with your network. Do you want to learn more about intellectual property? Subscribe now on your favorite podcast player. Follow us on Instagram, facebook, linkedin and Twitter. Visit our website, wwwintangibliacom. Copyright Leticia Caminero 2020. All rights reserved. This podcast is provided for information purposes only.