MLP Fanwork Illegal

[decoherence 183]

This just came up in another thread about BronyDoc. I looked in to it a while ago. I'm not a lawyer but I'm pretty sure I've got at least the basics of this this right. In short, there isn't a simple answer.

 

 

Fan art of any kind that utilizes the property of a copyright holder is copyright infringement. For example, J.K. Rowling has sued fanfic authors for writing about the Harry Potter universe.

 

The thing to remember is that it is left to the discretion of the copyright holder to enforce their copyright. It is Hasbro's right to pick and choose which infringing materials (called 'derivative works') they consider acceptable and which they want to try and stop.

 

If Hasbro decides they want to stop a certain piece of infringement, as they did with Fighting is Magic, their first step is to send a cease and desist order, which they have. Let's pretend that the team behind Fighting is Magic, Mane 6, decided they weren't going to comply and the thing headed to court. The judge would look at ALL of the following (and maybe more.)

 

1. Is the infringing work for commercial use?

2. Is the infringing work highly transformative? (that is to say, was a lot of original material created by the person who made the infringing work? How much of the value of the infringing work depends on the consumer's recognition of the original work?)

3. Does the infringing work impact the copyright holder's ability to exploit their original work or authorized derivatives of the original work?

 

In the case of Fighting is Magic, 1. is a non-issue. It's not for sale. 2. is a bit stickier. The appeal of the game is that it stars the show's main characters, and they are faithfully reproduced to look exactly as they do on the show, even if they are drawn from scratch in poses that never existed on the show. They are immediately recognizable and that is what a court will likely be interested in. 3. is also potentially sticky. Hasbro may feel that a fighting game starring these ponies sullies the 'family friendly' reputation of the brand which could be considered a negative economic impact.

 

Note that fan art should not be confused with parody, which infringes on a copyright in order to make some kind of comment on it. They can be the same thing but in the case of Fighting is Magic, that doesn't seem to be the case. I would say that Friendship is Witchcraft could be considered a parody.

 

Anyway, there is no clear cut answer -- this stuff is determined on a case by case basis, if it goes to court, and ALL of the above questions need to be considered (and maybe others.) From a practical standpoint, I think there are just two things a content producer needs to keep in mind.

 

1. Don't tick off the copyright holder. Use your best judgement as to what this means.

2. If you do tick off the copyright holder, you probably can't afford to fight them in court (certainly not Hasbro.)

 

Hasbro is very lenient when it comes to copyright infringement. As much as I would love to see Fighting Is Magic come to fruition, and as much as I think it sucks that they put so much excellent work in to it only to have it smacked down by lawyers fairly late in the development process, it doesn't surprise me in the least that Hasbro put the kibosh on a fighting game that stars characters from what is supposed to be a wholesome children's show.

 

Now, consider the mlp-vectorclub on deviantart. These are, for the most part, high resolution traces of screen captures in the show. The copyright for those vectors would almost certainly fall to Hasbro. The person who actually did the trace may be entitled to some kind of mechanical rights but I think it's completely wrong when they release their vector under a Creative Commons license. I see that as re-licensing a copyright you do not own. I would think that the people doing that are more likely to get in trouble than those who just post the stuff on deviantart with no explicit license, or say 'you can use this as long as you credit me [as the vector artist, presumably]'

 

Let's look at it again with the perspective of those three points I mentioned earlier.

 

1. Those vectors are not for commercial use.

2. No, the vectors are purposefully NOT transformative. They are, for the most part, direct reproductions of existing art.

3. The vectors themselves likely do not have a negative economic impact as Hasbro is very good at leveraging brand recognition. The more of their highly recognizable characters are out there, the more brand recognition they get. They are more likely to go after work created with those vectors that they see as potentially having a negative economic impact. It would also have to be popular enough to show up on their radar. Bronies enjoy the spirit of the show and generally create things that are also in the spirit of the show. So, if someone re-did Cupcakes such that it was indistinguishable from a real episode in terms of production values, I would say they're treading on thin ice.

 

Basically, it's a mess, it's complicated, people who think they're doing the right thing are often doing exactly the wrong thing, there's no simple answer and it's great for keeping lawyers busy.

 

Thank goodness Hasbro seems to recognize the value of fan art in general. That is what allows us to not worry too much about this. I hope that never changes.

 

DISCLAIMER: I am not a lawyer, I've made lots of wild assumptions in the post and, in fact, have no idea what I'm talking about  but I still think i have the part about how fan art is determined to fall under 'fair use' basically correct.

 

PS apologies for editing this so many times. I try to be very careful of what I say and how I say it when dealing with this subject, because it really isn't as simple as some people seem to think it is. It just seems simple because Hasbro is very lenient, so they make it simple for us. 

Edited February 10, 2013 by decoherence

[~SadisticFluttershy~ 779]

I'm gonna continue with Feld0's explanation.

 

He is correct, Scratch made MLP Computer games from other companies other than hasbro is Illegal UNLESS, They get permission from Hasbro to create such game for example: MLP Fighting is Magic, or Legends of Equestria.

 

Now moving onto Fan fictions and Fan art/Fan music.

This is not illegal unless you create music or anything and try to sell it for real money, That's illegal.

But if you are just doing it for fun under you're own time and sharing it online like right here, or Deviantart, Fimfiction, and alot of other websites, That's completely okay, As long as you are not selling the content for money.

 

This explanation is real simple.

Edited February 10, 2013 by ~Chaotic Fluttershy~

[Zygen 6,066]

Well this isn't actually that true technically. I mean according to copyright laws as far as I am concerned they don't apply to things that your not making a profit on.

 

I guess that if the developers of Fighting is Magic are making money off it, then maybe thats why. I still don't like it, but I suppose there is some truth in that law.

 

Plus its probably got the most attention out of alot of the things made by bronies.

 

I doubt that most fanwork gets enough attention for it to matter, but it shouldn't in the end really matter as long as its not made for profit. Even then most fanwork never gets enough attention to warrant hasbro or anyone any concern.

 

But honestly Hasbro seems to be going after some things now. Like how Parodies of MLP and all that are being taken down, when their technically legal. As far as I'm concerned atleast. The creators aren't really making any direct profit off it. It could also just be youtube and their crappy content ID stuff though.

 

Regardless, I all fanwork isn't actually illegal, only the ones that are making profit would even start to be considered this, and that is already a small majority, and the even smaller majority or next to none gets enough attention to even bother about.

 

Copyright laws seem to be very stupid overall . Or companies just don't understand them.

[Haven Celestii 9,385]

The C&D of Fighting is Magic is getting a lot of heat, and the primary reason for this is due to trademarking issues. So, after getting myself a little informed on trademark laws, I found out that all fanwork, from fan fictions to fan art, are actually illegal. This actually kinda shocked me. Any thoughts on this? (On a side note, I think it safe to say that EVO killed Fighting is Magic.)

Whoa, you can NOT be seriously thinking EVO had anything to do with this.

 

I don't even see how you could get such a conclusion. That game was big from the get go, not to mention, it was played at Canterlot Gardens in a tournament beforehand. Just cause it was supposed to be at EVO doesn't mean anything. It still would have gotten taken down had it not been supposed to have gone for the same reason.

[Shift 4,272]

As everypony else has repeated multiple times...it's not illegial unless they make a profit. Trust me, nothing involving MLP is getting on the front page of Deviantart.

[decoherence 183]

I'm gonna continue with Feld0's explanation.

 

He is correct, Scratch made MLP Computer games from other companies other than hasbro is Illegal UNLESS, They get permission from Hasbro to create such game for example: MLP Fighting is Magic, or Legends of Equestria.

 

Now moving onto Fan fictions and Fan art/Fan music.

This is not illegal unless you create music or anything and try to sell it for real money, That's illegal.

But if you are just doing it for fun under you're own time and sharing it online like right here, or Deviantart, Fimfiction, and alot of other websites, That's completely okay, As long as you are not selling the content for money.

 

This explanation is real simple.

 

What about the t-shirts on welovefine or similar sites? Do you think that Hasbro will at some point go after them? I don't actually know who gets the money for that -- I assume it's a split between welovefine and the artist. But welovefine sells fan art clothing for many franchises and yet they're still around. Why? I truly don't know the answer. Anyone?

[~SadisticFluttershy~ 779]

What about the t-shirts on welovefine or similar sites? Do you think that Hasbro will at some point go after them? I don't actually know who gets the money for that -- I assume it's a split between welovefine and the artist. But welovefine sells fan art clothing for many franchises and yet they're still around. Why? I truly don't know the answer. Anyone?

 

 

 

The thing about that, is that what i can't figure out.

Normally merchandise company's like those get permission to do stuff like that.

Including Store's like Hot topic.

[Nohbdy 4,108]

I thought this EQD editorial might be of interest. To summarize, any type of fan work is technically illegal, regardless of whether one attempts to profit. Even disclaimers and acknowledgment of Hasbro's IP ownership don't change this. Normally, fan works aren't an issue, and Hasbro is content to ignore them. A work like Fighting is Magic, however, can potentially stir up controversy and negative publicity for Hasbro. It can set precedent for future works that further loosen Hasbro's control of trademarks, disrupt the value of the franchise, and potentially incur massive financial damage to the company. It should be understood that trademark is a separate legal entity from copyright.

 

The article does discuss a possible future for Fighting is Magic, however: if the game were to be made without trademarked names or characters, it would then be fully acceptable. Given the nature of these changes, and the resignation of several Mane6 staff, such a future may not be realized any time soon.

[decoherence 183]

The thing about that, is that what i can't figure out.

Normally merchandise company's like those get permission to do stuff like that.

Including Store's like Hot topic.

 

If they got permission from Hasbro to sell merchandise with fan art, that would be very interesting indeed! It would basically amount to Hasbro giving a ringing endorsement of fan art, which would be very cool. Now I'm even more curious!

 

 

 

I thought this EQD editorial might be of interest. To summarize, any type of fan work is technically illegal, regardless of whether one attempts to profit. Even disclaimers and acknowledgment of Hasbro's IP ownership don't change this. Normally, fan works aren't an issue, and Hasbro is content to ignore them. A work like Fighting is Magic, however, can potentially stir up controversy and negative publicity for Hasbro. It can set precedent for future works that further loosen Hasbro's control of trademarks, disrupt the value of the franchise, and potentially incur massive financial damage to the company. 

 

Wow, you said that so much more succinctly than I did!

Edited February 10, 2013 by decoherence

[Thundershy 144]

It's funny because when I want something, the owner of the rights never has it for sale.  All of the stuff that fits us Bronies is made by people without the rights.  What it really boils down to is when enough money is made, they will go after you.  But if it is small, it's not worth their time.

 

We used to have a real bad hourly motel around here called the Bugs Bunny Motel.  Finally they threatened them and they simply broke out part of the neon and made it the Big Bunny Motel.  Thought that was funny to share...

[Fhaolan 4,476]

What about the t-shirts on welovefine or similar sites? Do you think that Hasbro will at some point go after them? I don't actually know who gets the money for that -- I assume it's a split between welovefine and the artist. But welovefine sells fan art clothing for many franchises and yet they're still around. Why? I truly don't know the answer. Anyone?

 

WeLoveFine consults their own lawyers on a regular basis for their product lines. It's the reason why they renamed Doctor Whooves to Doctor Hooves so that they didn't step on the toes of the BBC. I would be *astonished* if they don't have a special license from Hasbro.

[Batbrony 16,040]

Everypony needs to really stop freaking out about this.  Yes, it stinks that "Fighting is Magic" got shut down, but as plenty of level heads have pointed out, they didn't get the proper licenses and permission from Hasbro, so even though it was certainly random timing on Hasbro's part, Hasbro was still legally in the right.

 

As for all other fan work in general, guys, seriously, just because Hasbro has shut down some significant fan projects this season, like "Friendship is Witchcraft" (  which I am honestly still confused on) and "Fighting is Magic," they are not about to go and try to destroy the entire brony fandom!  Hasbro is hardly the first company to pull fan material from the Internet, and they've barely done it for MLP as much as companies such as Disney have done for even less relevant fan pieces.  Furthermore, I have yet to see any company try to pull any type of fan art or fan fiction for ANYTHING from the Internet, so Hasbro, which has, ever since learning of the brony fandom, encouraged these types of projects always, is not going to become the first company to pull fan fictions from the Internet!!!  Just relax guys, some of you are freaking out about as much as Twilight did in "Lesson Zero" right now! 

Edited February 10, 2013 by Batbrony

[decoherence 183]

WeLoveFine consults their own lawyers on a regular basis for their product lines. It's the reason why they renamed Doctor Whooves to Doctor Hooves so that they didn't step on the toes of the BBC. I would be *astonished* if they don't have a special license from Hasbro.

 

Yeah, I guess you're right. They must have licenses with Hasbro, Disney, Viacom, etc. I wonder what the terms are? I did a bit of poking around and WeLoveFine gives artists a 10% commission. I wonder how the rest of the 90% gets divvied up but in any case, Hasbro looks to be making money from fan art in a pretty direct way.

 

Is it strange that it gives me the warm fuzzies to know that?

[Goose 181]

From what I've read, it actually is illegal.

 

Check out this link: http://www.paperwingspodcast.com/2012/11/fan-art/

 

Do you own the character in question?

• Yes? Do what you please!
• No? You have no legal right to profit from work featuring characters without permission from copyright holder.
• No? You have almost no rights to create such works not for a profit, either.

As far as I know you could always claim your work was a parody, but it would actually have to be... a parody.

[hawkflame 3,310]

No. They aren't going to take such down. They won't unless it's very popular. And when I say popular, I mean very popular. Fan fics, art, etc. don't get that attention.

 

I would argue that Cupcakes rivals Fighting is Magic in terms of popularity.

 

I also recall fans putting togetehr and selling a printed book version of Fallout; Equestria.  Wonder if they;re going to stop that as well.

[Kyubey 60]

Fanworks aren't illegal. They aren't infringing if they aren't fair use. In fact, from what I know, even commissions are legal, as long as you give credit and don't just steal the source completely, though there is quite a bit of controversy around making profit.

 

The only reason Fighting is Magic got a C&D was because it started to get massively popular. If it was released, and other big companies found out and started getting involved, Hasbro could have lost their rights to Friendship is Magic. They've already lost the previous generations, and they don't want to lose G4 too.

Edited February 10, 2013 by potahto

[I used to be a stranger 7,993]

If my stories get taken down, Shock and Horror I'll have to write my own stories using my own invented material!

 

Seriously though I'm actually thinking a lot more about creating my own settings and characters rather than loaning from pre-existing intellectual properties.

[Fhaolan 4,476]

I would argue that Cupcakes rivals Fighting is Magic in terms of popularity.

 

I also recall fans putting togetehr and selling a printed book version of Fallout; Equestria.  Wonder if they;re going to stop that as well.

 

Only if the current licensee for MLP books complains, probably. I have a feeling Fighting is Magic was targeted because one of the current licensees for MLP video games complained to Hasbro about illegal competition. Not-for-profit is irrelevant to a licensee if it actively takes market share from them, devaluing their license. And due to the press on Fighting is Magic, there was a good chance it was to dominate the MLP video game market when it was released, costing the current licensees sales of their stuff.

 

If that happened, Hasbro might pull the license from that licensee for 'failing to properly exploit the brand' (I don't know the official legal terms, but I've seen it happen. Actually by one of the companies now owned by Hasbro, now that I think of it.) And then Hasbro is left with a functionally worthless license as existing fanwork is entrenched in the market. It's just easier for the licensee to aim Hasbro in the illegal competition's direction.

[TBB Animal 40]

I don't see many Fan Fic's that are parodies or criticisms towards the show. Most, if not all, MLP Fan Fics use the pony characters (or MLP trademarked material) to create a story. As for parodies, the .mov series is considered a parody, which is why it can get away from situations like what Fighting is Magic is going through currently.

Well isn't MLP Fighting is Magic a parody? I think if they just explain themselves they will resume production. Hopefully that is what will happen.

[MadDoggyca 710]

I guess most of you ponies havn;t looked on ebay at all then.

 

I suppose things like this are illegal then eh?

 

Plushy

http://www.ebay.ca/itm/MY-Little-Pony-RARITY-Winter-Dressed-Friendship-is-Magic-Custom-Handmade-Plush-/261168150994?pt=TV_Movie_Character_Toys_US&hash=item3cced5b9d2

 

http://www.ebay.ca/itm/My-Little-Pony-Friendship-is-Magic-Crochet-Applejack-/290858573957?pt=TV_Movie_Character_Toys_US&hash=item43b885a085

 

Hat

http://www.ebay.ca/itm/My-Little-Pony-Friendship-Is-Magic-Exclusive-Rainbow-Dash-brony-Hat-Brony-Up-You-/281062696292?pt=TV_Movie_Character_Toys_US&hash=item4170a46564

 

drawing

http://www.ebay.ca/itm/My-Little-Pony-Friendship-is-Magic-Be-Mine-Rarity-Valentine-Unicorn-Art-Sketch-/200890319532?pt=Art_Drawings&hash=item2ec5ff02ac

 

examples of making money on a "IP" / Trademark  . I suppose all these are illegal then.

 

Problem is, useall fan made(s)  are uselly better then Compenie products

 

Edited February 11, 2013 by MadDoggyca

[Fhaolan 4,476]

I guess most of you ponies havn;t looked on ebay at all then.

 

I suppose things like this are illegal then eh?

 

Plushy

http://www.ebay.ca/itm/MY-Little-Pony-RARITY-Winter-Dressed-Friendship-is-Magic-Custom-Handmade-Plush-/261168150994?pt=TV_Movie_Character_Toys_US&hash=item3cced5b9d2

 

http://www.ebay.ca/itm/My-Little-Pony-Friendship-is-Magic-Crochet-Applejack-/290858573957?pt=TV_Movie_Character_Toys_US&hash=item43b885a085

 

Hat

http://www.ebay.ca/itm/My-Little-Pony-Friendship-Is-Magic-Exclusive-Rainbow-Dash-brony-Hat-Brony-Up-You-/281062696292?pt=TV_Movie_Character_Toys_US&hash=item4170a46564

 

drawing

http://www.ebay.ca/itm/My-Little-Pony-Friendship-is-Magic-Be-Mine-Rarity-Valentine-Unicorn-Art-Sketch-/200890319532?pt=Art_Drawings&hash=item2ec5ff02ac

 

examples of making money on a "IP" / Trademark  . I suppose all these are illegal then.

 

Problem is, useall fan made(s)  are uselly better then Compenie products

 

 

 

 

Yup, they are illegal. Which is why one of the primary fan Plushie makers got a C&D letter as well. If someone pointed these out to Hasbro directly, they'd be compelled to send C&D letters to these people. Actually, you'd get more out of pointing the plushies out to ToyWiz, as they're the licencee for MLP Plushies. They'd complain to Hasbro and then Hasbro would send out the C&D.

[Reani 176]

Well isn't MLP Fighting is Magic a parody? I think if they just explain themselves they will resume production. Hopefully that is what will happen.

http://dictionary.reference.com/browse/parody?s=t  I doesn't look to me like Fighting is Magic is "satirical imitation" of My Little Pony. Furthermore, I'm with you on them explaining themselves and trying to resume production. I really want to see this game released. All we can do now is wait and hope.

[cuteycindyhoney 13,302]

That's not the case. If non profit isn't a problem, then why is Fighting is Magic going through this ordeal? The only reason this is happening is because Fighting is Magic got put on a large radar when EVO got involved.

I was under the impression that "Fighting is Magic" was destined to be sold when it was completed. If that was the case, Hasbro is acting well within their rights. You can't profit by using another party's copyrighted works.  Frankly, this is why I steer clear of writing fanfics. When I write, I use original characters and situations created by me. To be honest, it felt like cheating the three times (out of over one hundred and thirty stories) that I wrote fanfics.

[Reani 176]

 

I was under the impression that "Fighting is Magic" was destined to be sold when it was completed.

Nope. Fighting is Magic was going to be completely free. They did this with their own money and they never once accepted money, even if it was a simple donation.

[cuteycindyhoney 13,302]

If my stories get taken down, Shock and Horror I'll have to write my own stories using my own invented material!

 

Seriously though I'm actually thinking a lot more about creating my own settings and characters rather than loaning from pre-existing intellectual properties.

From my own experience, I can tell you it's much more satisfying to create a whole world peopled by characters you've thought up yourself. It's just a shame that I can not link to my work here. I would probably get seriously banned if i did!

 

Nope. Fighting is Magic was going to be completely free. They did this with their own money and they never once accepted money, even if it was a simple donation.

Even if that is the case, and they weren't going to receive a dime, they still would be grabbing revenue from the companies currently licensed to create FIM games. I know there is at least one. Why would people buy their game, if they could get one for free elsewhere?

 

Actually, people selling Pony plushies and whatnot on EBay are breaking the law. Years ago, the science fiction/fantasy author Anne McCaffrey successfully sued to block someone selling plush "Fire Lizards" at science fiction conventions. She didn't sue them for monetary gain. She just wanted it stopped. Fire Lizards are her intellectual property, and nobody has a right to make money using them without her express permission. The same thing applies to anything MLP. Hasbro, love 'em or hate 'em, has complete legal ownership of the characters. They tend to look the other way on most things, but the Fighting is Magic game overstepped how far they were willing to let things go.

Edited February 11, 2013 by cuteycindyhoney