`Transmedia` a copyright GREY AREA

10 | June 29, 2012
The lawyers weekly
www.lawyersweekly.ca
FOCUS
ON
Intellectual Property
Fifty Shades of Grey, the erotic into new formats and media.
novel written by author E.L. James,
Accordingly, fans who use a subis a runaway bestseller and a popu- stantial amount of a copyrighted
lar phenomenon, but as Barbara work to create fan fiction, should
Amiel recently pointed out: “There (but almost never do) obtain perare some greyish (no pun intended) mission from the copyright owner
areas of copyright hovering
of the original underlying
about the trilogy.” Indeed,
work, unless the adapted
it’s a promising legal subwork qualifies under one of
ject — Shades raises a host
the Copyright Act’s very limof complex transmedia
ited “fair dealing” exceplegal issues.
tions: criticism and review,
The novel originated as a
research and private study,
piece of online fan fiction
or news reporting. Ideally, a
Tara waiver of the copyright
titled Masters of the Universe, which, in turn, was Parker author’s “moral rights”
based upon characters from
should also be obtained
the Twilight series of vamsince moral rights protect
pire novels written by Stephenie an author’s right to be credited (or
Meyer. Therefore, the author and remain anonymous) and to mainpublisher of the Shades trilogy tain the integrity of his or her work.
must have satisfied themselves that
The issue will soon become
nothing in the trilogy’s “chain of more complex when the Copyright
title” infringed the copyright in Modernization Act becomes law
these other works.
later this year. Bill C-11 will expand
While some may dismiss Shades “fair dealing” under the Copyright
as lowbrow (Amiel describes it as Act to include fair dealing for the
“bog standard”), they may be mis- purposes of education, satire and
sing the point. When fans upload, parody. More importantly, the bill
tweet, post or pin online their sub- contains a provision that, accordstories, mash-ups, artwork and vid- ing to the Government of Canada’s
eos (with or without authorization), backgrounder, will permit Canthey become content co-creators, adians to incorporate existing
simultaneously pushing their “play copyrighted materials in the creand pleasure buttons” by partici- ation of new works, such as Interpating in a method of storytelling net “mash-ups”, as long as:
it is done for non-commercial
that engages audiences across vari- n
purposes;
ous multimedia platforms.
the existing material was legitAccording to transmedia expert n
Henry Jenkins, this multiplatform imately acquired;
the work they create is not a substory-telling method, where each n
story element makes its own stitute for the original material,
unique contribution to the whole, and does not have a substantial
is what is known in the entertain- negative impact on the markets for
the original material, or on the crement industry as “transmedia.”
In shared story worlds or ator’s reputation.
The flip side of this issue is: if
transmedia projects, fans are
often encouraged to create title, a transmedia producer wishes to
character or story-based fan use, reproduce and/or exploit
boards, games, videos or other story or character elements that
content based on their favourite are the same or very similar to
video game, movie or television user-generated, co-created conseries. Is this considered copy- tent, will they be risking a law
right infringement? Although suit for copyright infringement?
some may consider this a legally This depends upon how the IP
grey or shadowy area, it is clear rights are managed.
For example, website terms of
that under Canadian copyright
law, authors have the exclusive service should require content coright to control the reproduction creators to represent that they own
and adaptation of their works or have the necessary rights to
Jeffrey M. Boan/ The canadian press
‘Transmedia’
a copyright
GREY AREA
upload content to the site. The
terms of service also should grant
transmedia producers the exclusive
or non-exclusive (shared) right to
reproduce, edit and use the
uploaded content on, for example,
a “worldwide,” “irrevocable,” “perpetual,” “royalty-free basis,” in certain listed media formats or,
alternatively, in “any and all media
now known or later developed.”
When it comes to complying
with applicable privacy laws, producers can reduce the risk of privacy claims by allowing users to
control their personal account or
privacy settings. For example, if a
transmedia project makes use of
material from users’ Facebook
accounts, user-controlled privacy
settings or another means of online
consent (such as clicking “I agree”)
may be used to confirm that users
consent to the proposed use (e.g., to
post messages, photos and videos)
of their personal information.
As the ways of building stories, content and audiences continue to adapt to new technological trends, entertainment
lawyers need to make corresponding adjustments to their
advice, focusing in particular on
the benefits and risks of maintaining and/or ceding control of
IP in this collaborative transmedia environment.
To do otherwise may risk
exposing their clients to legal
liability, negative publicity, or, to
use the ominous words of John
Robertson, creator of interactive
video The Dark Room: “You may
get the game you deserve.” n
Tara Parker is a partner in the
Entertainment Law Group of
Goodmans LLP in Toronto. Her
practice focuses on film, television
and transmedia productions.
Author E.L. James holds a
copy of her book Fifty
Shades of Grey at a signing
in Coral Gables, Fla., April
29. The popular trilogy
originated as online fan
fiction and raises complex
transmedia legal issues.