Two of the biggest online entities for fan creativity are CafePress and Etsy. Often for fan artists there is a tricky balance between creating an item that is inspired by a book or the movie vs. something that takes the rights of others. It gets even trickier when you have a book in the mix because now you have a publishing company’s rights to deal with as well.
CafePress entered into an agreement with Summit to allow fans to produce fan items from the Twilight Saga. There are tens of thousands of items from water bottles to tee shirts. There are some limits, like no images from the movie, and no fangs, but you can quote the movie, and use character names.
On the other hand, Etsy has no such agreement, and this leads to confusion over what is allowable. CNET covers some of the controversy:
One of the biggest entertainment franchises in the world, for example, is almost completely absent from Etsy: the Twilight teen-vampire book and movie series. There are items that describe themselves as “Twilight inspired,” but posts in Web forums by Etsy sellers who have had Twilight-related items removed from the e-commerce site indicate that Summit Entertainment, the movie studio that owns the trademark to the Twilight franchise, has been policing Etsy for more obvious infringements.
For legal reasons, Etsy’s Feingold declined to comment on these reports or on which specific brands’ trademark holders have called up the company with takedown notices, and Summit representatives did not respond to a request for comment. But considering Summit’s history of filing suit against unofficial Twilight media, it’s not surprising.
One of the reasons why this is so complicated is because trademark holders are required to enforce their property or risk losing the trademark altogether.
“They are required to protect their trademarks, if they are to continue to have them, so that it doesn’t fall into the public domain,” explained David Foox, a onetime patent litigator who is now an artist. Foox said he’s experienced these complications from both sides. “If you have a trademark, and you registered it, it means you have carved out a part of this idea that has been developed into a brand.”
Foox said that as an artist, he sees fan creations, including those where the fans aim to profit, as a measure of success, but that as an attorney, he recognizes the legal requirement to protect trademarks.”
So what exactly can you or can’t you do? Some things are obvious. You can’t take things like the Little Brown cover art, the movie stylized writing, movie stills, photos taken by professional photographers and use them without previous permission and in all likelihood payment for using them. Those are all unquestionably trademarked items. They are infact a violation of the Etsy Terms of Service. You just can’t take those and not expect to be slapped with a takedown when the intellectual property owner finds out.
On the other hand creating a fingerless gloves similar to the ones Alice wore in New Moon and calling them “Twilight Inspired” (vs actually saying “these are Alice’s gloves”) is probably fine. Creating a bookmark that says, “A Perfect Rainy Day in Forks” or “Volterra, Where Tourists Come In, But They Don’t Come Out.” are both probably sufficiently vague.
So what about making a pendant that quotes the spider monkey line and has Team Edward on it. What about making locket and inscribing it with “Renesmee”? …Welcome to the gray area, and THAT’s what is causing a lot of the trouble!
What also leads to trouble is that when a complaint is lodged about one item, at times an entire shop will be suspended rather than just the one item in question which results in a loss of revenue for the shop owner until the matter is cleared up. Cafepress, for example, doesn’t remove entire shops, just the item(s) in question.
Twilight isn’t the first franchise to do this. Warner Brothers, who control the Harry Potter franchise, took down all Harry Potter CafePress shops circa 2003. They sued a women having Harry Potter dinners at her restaurant. They also vigorously enforced their copyright on fansites (Ask the guys on Mugglenet what they have gone through over the years to make various tee shirts).
Additionally, if you really want a legion of lawyers to descend try taking anything that has to do with Disney. Disney is legendary with their vigorous defense of their intellectual property. I’m sure this family business didn’t bank on the 1 million dollar lawsuit over Winnie the Pooh!
So as of now, it looks like CafePress is the safest place for Twilight fan creations. Etsy, is going to be a proverbial crapshoot.
We’ve seen a number of commercial enterprises from tee shirt manufacturers to acting websites using things like the Cullen Crest, the Little Brown book cover images, or official PR photos of the actors to then represent or become a part of the product they sell. Typically, when the owner of the copyright/trademark (in this case Summit or Little Brown) discovers the unuathorized use of their intellectual property they issue a cease and desist (C&D) and the site/person generally speaking complies, everyone calls it a day and to quote Edward, “no blood, no foul.” Generally the party being handed the C & D has an inkling that what they were doing was either a gray area or actually over the line. They were just hoping not to get caught. So when the C & D lands in their lap they comply.
The New York Times examines various author and publisher sentiments on the double-edged sword of electronic books. Now that they are in this format, it’s a never-ending battle to keep them off of file sharing sites.
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